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The 

University of South Carolina 




Coleman Kaiesh 
Lawlibraiy 



CODE OF LAWS 



OF 



SOUTH CAROUNA 



1922 



IN THREE VOLUMES 



S. M. WOLFE. 
Attorney General 

J. C. McLURE 

Code Commissioner 

W. W. LEWIS 

*C. D. BARKSDALE 

fSILAS M. WETMORE 

Collaborators 



VOLUME I 

THE CODE OF CIVIL PROCEDURE 

THE CODE OF CRIMINAL PROCEDURE 

THE CONSTITUTIONS OF THE UNITED STATES AND 

SOUTH CAROLINA 

AND 

RULES OF COURTS 



THE R. L. BRYAN CO. AND THE STATE CO. 

COLUMBIA, S. C. 

1922 



"""Deceased 

tSuccessor to C. D. Barksdale 



I9ZZ- 
V. I 
c./ 



COPYKIGHT, 1923 
BY 

State of South Carolika. 



COLEMAN KARESH LAW UERAR^ 

vi; -versltv cf South CarcHna 



Preface 



This Code comprising- 3 Volumes, complied pursuant to Act of tlae 
General Assembly, to wit : 

AN ACT to provide for the Collection, Reprinting and Codification of 
all the General Statutory Law of the State, together with a Digest 
of the Decisions of the Supreme Court relative thereto, and for 
the repeal of Obsolete Laws, and to provide an appropriation there- 
for. 

§ 1. Codification of Statutory Law of State. — ^Be it enacted by the 
General Assembly of the State of South Carolina : All the general statutory 
laws of the State of South Carolina in force up to and inclusive of the 
year 1921, shall be collected, compiled without alteration, classified and 
correlated under their appropriate heads, titles, chapters, articles and sub- 
divisions therof, with notes and references, historical and otherwise, to- 
gether with a complete digest of the decisions of the Supreme Court of 
this State and of the Supreme Court of the United States relative thereto, 
properly annotated, 

§ 2. Appointment of Collaborators — Duties. — For the purpose of the 
provisions of this Act, the Governor shall appoint, with the approval of 
the Attorney General, two collaborators, who shall have been practicing 
attorneys in this State for not less than ten consecutive years, and whose 
duties shall be to collaborate with the Code Commissioner, under the 
direction of the Attorney general, in the work of collecting, arranging, 
annotating, compiling, indexing and preparing for the printer the statu- 
tory laws as pro"vdded herein, correcting the proof and certifying to the 
correctness of the finished work and report thereon with copies of the 
complete work to the General Assembly for the year 1921 for its ratification 
and adoption pursuant to law. 

§ 3. Unconstitutional, Obsolete and Repugnant Laws to Be Separately 
Reported. — The said collaborators, with the Code Commissioner, shall, 
among its other duties hereunder, report to the General Assembly of 1921, 
all Acts or parts of Acts which have deen declared unconstitutional, 
and which said collaborators and Code Commissioner shall deem to be 
obsolete, cumulative or repugnant to the general body of the law; and so 
much of said law as shall have been repealed by the General Assembly in 
consequence thereof at that session, shall be omitted from the final codifi- 
cation to be presented and ratified at the next succeeding session of the 
General Assembly as aforesaid. 

i§ 4. Use of Papers — Aid from State Departments. — That the collabo- 
rators and Code Commissioner aforesaid shall have access to all State 
papers, documents. Acts or parts of Acts in the custody of the Secretary 



IV PREFACE 

of State or other custodian of the State's law and archives, and shall 
have authority to call upon the Attorney General's office, the Secretary 
of Historical Commission, the Department of Justice, or other departments 
or departmental heads for such assistance as may be necessary in the 
furtherance of their work. 

§ 5. Officials to Render Assistance — Stationery and Printing. — The 

Secretary of State is hereby authorized and directed to furnish each of 
the said collaborators so appointed and the Code Commissioner, consti- 
tuted to perform the duties imposed under this Act, with such laws or 
codification of laws, as they may require, and the Secretary of State 
Historical Commission, the Attorney General, and other officials, are 
likewise charged with the duty of rendering such assistance as may be 
desired, and the State Joint Committee on Public Printing is required 
and authorized to provide all necessary stationery and printing incident 
to the proper prosecution of this work, upon requisition of the Code 
Commissioner. 

§ 6. Form of Publication of Compilation. — The General Assembly 
shall provide for the publication and binding of such compilation of 
the laws, when finally approved and adopted, following the style of 
the compiled laws of the State of Michigan for 1915 as a model as to 
form, arrangement and technical make-up. 

§ 7. Compensation of Collaborators — Office Expenses. — The two col- 
laborators provided for herein, respectively, shall receive for their services 
herein specified the sum of three thousand dollars each, one-third payable 
when the laws in effect have been compiled, arranged and certified to as 
herein provided; one-third when the digest of the decisions and other 
data on the said laws shall have been properly annotated and incorporated, 
and one-third upon the completion of the work and delivery thereof 
by the printers to the Secretary of State. The said Commissioner and 
collaborators shall be empowered to employ such clerical assistance and to 
provide such office space, office equipment and office supplies as in their 
judgment may be necessary, and to expend therefor not in excess of 
two thousand dollars. The said sums provided for to be paid out of 
the State Treasury by a warrant drawn thereon by the Comptroller General 
upon the order or warrant of the Code Commissioner. 

§ 8. Volume of Code. — The codification herein provided for shall 
comprise three volumes, one volume to include the procedure applicable to 
the Civil Code, and under a separate division that applicable to the 
Criminal Code, and this volume shall also embrace the rules of the 
several Courts; the Constitution of the United States, the Constitution 
of the State of South Carolina, 1868, and the Constitution of the State 
of South Carolina, 1895, together with annotations thereof. Volume II 
shall embrace all criminal and penal statutes pertaining to crime. Volume 
III shall contain all civil statutes. 



PREFACE V 

§ 9. Repealing Clause. — All Acts or parts of Acts inconsistent here- 
with are hereby repealed. 

Approved the 10th day of March, A. D. 1920. 

S. M. WOLFE, Attorney-General, 
J. C. McLURE, Code Commissioner, 
S. M. "WETMORE, 
W. W. LEWIS, 
Collaborators. 



An Act 

AN ACT to Declare the Compilation, Collection and Revision of the 
General Statute Law of the State as Reported by the Code Commis- 
sioner Pursuant to Section 5, Article VI, of the Constitution of 
1895, The Code of Laws for 1922, and the Only General Statutory 
Law of the State. 

Section 1. Be it Enacted by the General Assembly of the State of 
South Carolina. — That the Report of the Code Commissioner, embracing 
Volumes I, II and III, respectively, made to the General Assembly for 
the year 1921, pursuant to requirements of Section 5, Article VI of the 
Constitution of 1895, and comprising the result of his labors, in con- 
junction with his Collaborators, under and by virtue of Act No. 702 of 
the General Assembly, approved March 10, 1920, with such amendments 
as are made in connection with the adoption thereof, and as shown by 
the Journals of the Senate and the House of Representatives, respec- 
tively, and with such addition of the general statutes of 1921, and with 
such eliminations, arrangement, and amendments made in accordance 
with the Report of the Code Commissioner and Collaborators to the 
General Assembly for the years 1921 and 1922, respectively, hereto at- 
tached, be and the same is hereby adopted as the Code of Laws for 1922, 
and .declared the only general statutory law of the State on the 12th day 
of January, 1922, 

Approved by the Governor March 11, 1922. 



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TABLE OF CONTENTS 



Code of Procedure 



TITLE I. 

CODE OF CIVIL PROCEDURE 

Page 
The Code of Procedure 1 

PART I. 

OF THE COURTS OF JUSTICE AND THEIR JURISDICTION. 



TITLE I. 



Of the Courts of Justice. 

Their Designation 3 

TITLE II. 

Chapter I. Of the Supreme Court, its Officers and Jurisdiction 4 

Article 1. Of tlie Supreme Court and its Officers 4 

Article 2. Of the Supreme Court and its Jurisdiction 9 

Chapter II. Of the Circuit Courts and Judges, Circuits and Terms of Court. 

Article 1. Circuits and Judges 17 

Article 2. Circuits and Terms of Court 22 

Chapter III. Of County Courts 39 

Chapter IV. Of the Probate Courts 61 

Chapter Y. Of the Courts of Magistrates 74 

Chapter VI. Of the Civil and Criminal Court of Charleston S6 

Cpiapter VII. Of the City Court and the Police Court of Charleston 90 

Chapter VIII. Of Attorneys, Solicitors and Counsellors 95 

Chapter IX. Of Special Provisions Respecting Courts and the Administra- 
tion of Justice 99 



PART II. 

OF CIVIL ACTIONS. 



TITLE I. 

Form of Civil Actions 105 

TITLE II. 

Time of Commencing Civil Actions 106 

Chapter I. Actions Generally 107 

Chapter II. For the Recovery of Real Property 107 

Chapter III. Time of Commencing Action Other Than the Recovery of Real 

Property 113 

Chapter IV. General Provisions as to the Time of Commencing Actions . . . 116 



VIII 



TABLE OF CONTENTS 



TITLE III. 

Parties to Civil Actions. 

Page 

Chapter I. Parties to Civil Actions Generally 120 

Chapter II. Executors and Administrators as Parties to Certain Civil 

Actions 126 

TITLE IV. 
Of the Place of Trial of Civil Actions 129 

TITLE V. 
Manner of Commencing Civil Actions 133 

TITLE VI. 
Of the Pleadings in Civil Actions. 

Chapter I. The Complaint 143 

Chapter II. The Demurrer 144 

Chapter III. The Answer , 149 

Chapter IV. The Reply 152 

Chapter V. General Rules of Pleading 153 

Chapter VI. Mistakes in Pleadings and Amendments 162 

TITLE VII. 

Of the Provisional Remedies in Civil Actions. 

Chapter I. Arrest and Bail 170 

Chapter II. Claim and Delivery of Personal Property 176 

Chapter III. Injunction 179 

Article 1. Injunction — General Provisions 179 

Article 2. Injunction to Abate Certain Nuisances 183 

Chapter IV. Attachment 185 

Chapter V. Provisional Remedies 197 

TITLE VIII. 

. Of the Trial and Judgment in Civil Actions. 

Chapter I. Judgment Upon Failure to Answer, etc 201 

Chapter II. Issues and the Mode of Trial 203 

Chapter III. Trial by Jury 

Article 1. Jury Trial — General Provisions 209 

Article 2. Jury Commissioners — Drawing and Summoning Jurors 213 

Article 3. Qualification, Exemption, Empaneling and Pay of Jurors.... 219 

Article 4. Objection to Jurors — Verdict 222 

Article 5. Miscellaneous Provisions 224 

Chapter IV. Trial by the Court 225 

Chapter V. Trial by Referee 227 

Chapter VI. Manner of Entering Judgment 230 



TABLE OF CONTENTS 



IX 



TITLE IX. 
Of the Execution of the Judgment in Civil Actions. Pace 

Chapter I. The Execution 233 

Chapter II. Proceedings Supplementary to the Execution 240 

TITLE X. 

Of the Costs in Civil Actions. 
Of tlie Costs in Civil Actions 245 

TITLE XL 
Of Appeals in Civil Actions. 

Chapter I. Appeals in General 249 

Chapter II. Appeals to the Supreme Court 251 

Chapter III. Appeal to the Circuit Court From an Inferior Court 258 

TITLE XII. 
Of the Miscellaneous Proceedings in Civil Actions and General Provisions. 

Chapter I. Submitting a Controversy Without Action 266 

Chapter II. Proceedings Against Joint Debtors 266 

Chapter III. Confession of Judgment Without Action 267 

Chapter IV. Offer of the Defendant to Compromise the Whole or a part of 

the Action 269 

Chapter V. Admission or Inspection of Writings 270 

Chapter VI. Examination of Parties 270 

Cpiapter VII. Witnesses and Evidence. 

Article 1. Attendance of Witnesses 272 

Article 2. Examination of Witnesses 274 

Article 8. Examination of Witnesses by Commission 278 

Article 4. Examination of Witnesses Before Clerk and Depositions De 

Bene Esse 281 

Article 5. General Provisions -Respecting Evidence 284 

Chapter VIII. Motions and Orders 292 

Cpiapter IX. Entitling Affidavits 294 

Chapter X. Computation of Time 295 

Chapter XL Notices, and Filing and Service of Papers 295 

Chapter XII. Miscellaneous Provisions 297 

TITLE XIII. 

Actions in Particular Cases. 

Chapter I. Actions Against Foreign Corporations 298 

Chapter II. Action in Place of Scire Facias, Quo Warranto, and of Infor- 
mations in Nature of Quo Warranto 298 

Chapter III. The Writ of Mandamus 304 

TITLE XIV. 

Of Proceedings for the Relief of Persons Arrested in Civil Actions. 
Chapter I. Of the Discharge of Prisoners as Insolvent Debtors 305 



X TABLE OF CONTENTS 

TITLE XV. 

Of Remedies Relating to Real Property. Page 

Chapter I. Certain Proceedings by Remaindermen, Heirs, Etc 311 

Chapter II. Forcible Entry and Retainer, and Summary Ejection of Tres- 
passers 315 

Article 1. Forcible Entry and Detainer 315 

Article 2. Summary Ejection of Trespassers 317 

TITLE XVI. 
General Provisions 318 



The Code of Criminal Procedure 



Chapter 


I. 


Chapter 


II. 


Chapter 


III. 


Chapter 


IV. 


Chapter 


V. 


Chapter 


VI. 


Chapter 


VII. 


Chapter 


VIII. 


Chapter 


IX. 


Chapter 


X. 



TITLE I. 

CRIMINAL PROCEDURE. 

Page 

Of Arrest, Examination, Commitment and Bail 405 

Jurisdiction of Magistrates and Tlieir Courts 411 

Criminal Proceedings in Municipal Courts 419 

Proceedings in Courts of General Sessions 428 

Of the Rights of Persons Accused 432 

Of Trials 433 

Of Appeals and New Trials 444 

Of Judgment and Execution 447 

Of the Writ of Habeas Corpus 450 

Of Inquests on the Dead 455 



Constitutions and Rules of Courts 

Page 

Constitution of tlie United States of America. 1787 479 

Amendments 499 

Index to United States Constitution 509 

Constitution of tlie State of South Carolina, 1895 521 

Index to South Carolina Constitution, 1895 613 

Constitution of the State of South CaroUna, 1868 633 

Amendments 671 

Index to South Carolina Constitution, 1868 677 

An Act to Fix the Time of Meeting, Hearing of Causes, Calling of Extra Terms, 
etc., of the Supreme Court of South Carolina 685 

Rules of the Supreme Court of South Carolina 687 

Index to Rules of the Supreme Court of South Carolina 701 

Rules of Practice for the Circuit Courts of South Carolina 703 

Index to Rules of Practice for the Circuit Courts of South Carolina 727 

Rules of Practice for the Courts of Probate of South Carolina 733 

Index to Rules of Practice for the Courts of Probate of South Carolina 737 

Rules of the Supreme Court of the United States 739 

Index to Rules of the Supreme Court of the United States 763 

Rules of Practice in the District Court of the United States for the Eastern 
District of South Carolina 767 

Index to Rules of Practice in the District Court of the United States for the 
Eastern District of South Carolina 819 

Rules of Practice in the District Court of the United States for the Western 
District of South Carolina 831 

Rules of Practice in the Circuit Court of Appeals 877 

Index to Rules of Practice in the Circuit Court of Appeals 903 

Rules of Practice for the Courts of Equity of the United States 907 

Table of Sections in Civil Code of 1912— Where Found in Criminal Code of 1922 943 

Table of Criminal Statutes Since Criminal Code of 1912 Included in Criminal 
Code of 1922 946 



Code of Civil Procedure 



The Code of Civil Procedure 



TITLE I. 

THE CODE OF PROCEDURE. 

(1) § 1. Division of Remedies. — Remedies in the courts of justice 
are divided into : 1. Actions. 2. Special proceedings. 

Giv. Pro., '12, § 1 ; Civ. Pro., '02, § 1 ; 1S70, XIV, 423, § 1. 

"The Code of Procedure has made no material changes in the primary rights of parties, 
or in the different causes of action, nor undertaken to give any new redress ; but has only 
changed the mode bv which redress is reached and applied." Anderson v. Lynch, 37 S. C. 
575, 16 S. E. 773; Chapman v. Lipscomb, 18 S. C. 222; Sullivan v. Sullivan, 20 S. C. 509. 
The only changes in the mode of redress are such as relate to the pleading and its incidents. 
Price V. Brown, 4 S. C. 144. It has not interfered with the essential and inherent dis- 
tinctions between the difiEerent causes of actions. McConnell v. Kennedy, 29 S. C. 180, 7 S. E. 76. 
Nor the distinctions between law and equity. . "What was equitable before still remains equitable, 
and what was legal is still legal, and the mode of trial of each is still preserved." McMahan 
r. Dawkins, 22 S. C. 320; Knox v. Campbell, 52 S. C. 461, 30 S. E. 485; Poston v. Ingram, 
76 S. C. 167, 56 S. E. 780. "It allows only one form of action, and special pleas are not 
admitted." Smith v. Chamberlain, 38 S. C. 529, 17 S. E. 371. The General Statutes of 1882 
and the amended Code then adopted must be regarded as one Act and construed together. 
Fooshe V. Merriwether, 20 S. C. 337; City Council v. Weller, 34 S. C. 357, 13 S. E. 628. 

See note under section 6 post. 

(2) § 2. Definition of an Action. — An action is an ordinary proceed- 
ing in a court of justice, by wMcli a party prosecutes another party for 
the enforcement or protection of a right, the redress or prevention of a 
wrong, or the punishment of a public offense. 

Civ. Pro., '12, § 2 ; Civ. Pro., '02, § 2 ; 1870, XIV, § 423, § 2. 

This definition has been substantially adopted in all the Codes. Henderson v. Hyatt, 8 S. C. 
112. The distinction between the action, the method of applying the remedy for a wrong, 
and the cause of action, or wrong itself, and the remedy, or object of the action, is clearly 
defined in Bliss on Code Pleadings, 3 Ed., § 2. Nothing constitutes a cause of action 
under the Code which did not constitute a cause of action at law or suit in equity, prior 
to the adoption of the Code. Southern Porcelain Co.. v. Thew, 5 S. C. 5 ; Parker v. Jacobs, 
14 S. C. 112. And a complaint fails to state a cause of action under the Code only when, 
upon the facts alleged, the plaintiff is entitled to no relief, either at law or in equity. 
Mordecai v. Seignious, 53 S.-C. 95, 30 S. E. 717; Latham v. Harby, 50 S. C. 428. 27 g. E. 862. 
Attachment being a form of process incident to an action, is embraced in the term "actio'n," is not 
a special proceeding. Campbell v. Home Ins. Co., 1 S. C. 158; Allen v. Partlow, 3 S. C. 417. 
Appeal from Probate Court to Cirucit Court upon the merits is an action, and not a special 
proceeding. Henderson v. Hyatt, 8 S. C. 112. 

That section limiting a party to two actions for recovery of real property bars plaintiff 
from further relief where he had already brought two actions in partition involving the 
issue of paramount title as between himself and defendant in view of this Section and 
Sections 308, 528 and 530. Walsh v. Evans, 112 S. C. 131; 99 S. E. 546. 

(3) § 3. Definition of a Special Proceeding. — Every other remedy is 
a special proceeding. 

Civ. Pro., '12, § 3 ; Civ. Pro., '02, § 3 ; 1870, XIV, 423, § 3. 

Rule against Sheriff for official misconduct is a special proceeding. Emory v. Davis, 4 S. C. 23. 
Attachment of crop under lien is a special proceeding. Johnston v. Manigault, 13 S. C. 406; 
Sease v. Dobson, 33 S. C. 235, 11 S. E. 728, 36 S. C. 554, 15 S. E. 703. 

(4) § 4. Division of Actions into Civil and Criminal. — Actions are of 
two kinds : 1. Civil. 2. Criminal. 

Civ. Pro., '12, § 4; Ci\^. Pro., '02, § 4; 1870, XIV, 423, § 4. 

(5) § 5. Definition of a Criminal Action. — A criminal action is pros- 
ecuted by the State^ as a party, against a person charged with a public 
offense, for the punishment thereof. 

Civ. Pro., '12, § 5; Civ. Pro., '02, § 5; 1870, XIV, 423, § 5. 

Criminal prosecutions are actions. State v. Reynolds, 48 S. C. 384, 26 S. E. 679. 

2 C C P 



2 CODE OF CIVIL PROCEDURE 

(6) § 6. Definition of a Civil Action. — Every other is a civil action. 
Civ. Pro., '12, § 6 ; Civ. Pro., '02, § 6 ; 1S70, XIV, 423, § 6. 

Deposition provided for in Civil Code can only be used as evidence in civil actions, 
including "special proceedings," as defined in Sections 1 to 6 hereof. In Re Percival's 
Estate, 108 S. C. 40; 93 S. E. 243. 

(7) § 7. Civil and Criminal Remedies Not Merged in Each Other. — 

Where the violation of a right admits of both a civil and criminal remedy, 
the right to prosecute the one is not merged in the other. 
Civ. Pro., '12, § 7 ; Civ. Pro., '02, § 7 ; 1870, XIV, 423, § 7. 

Criminal prosecutions cannot be given in mitigation of damages for assault and battery. 
Edwards v. Wessinger, 65 S. C. 164, 43 S. B. 518, 95 Am. St. Rep. 789. 

(8) § 8. Division of the Code of Procedure. — ^^This Code of Procedure 
is divided into two parts : the first relates to courts of justice and their 
jurisdiction; the second relates to civil actions in the courts of this 
State, 

Civ. Pro., '12, § 8 ; Civ. Pro., '02, § S ; 1870, XIV, 423, § 8. 

Prior to the Act of 1884, XVIII, 737, the provisions of the Code as to proceedings on 
appeal did not apply to criminal cases. State v. Pitts, 12 S. C. 180. The second part of the 
Code applies only to the Court of Common Pleas, except where express reference is made to 
inferior Courts. Doty v. Duval, 19 S. C. 43. The provisions of § 708 expressly apply 
also to criminal actions. State v. Reynolds, 48 S. C. 384, 26 S. E. 679. 

The Circuit Court hearing appeal from Magistrate's Court based on alleged error of fact 
may not consider affidavits, as such practice relates only to civil actions under this section. 
State V. Richardson, 98 S. C. 147; 82 S. E. 353. 



PART I. 

Of the Courts of Justice and Their Jurisdiction 



TITLE I. 

OF COURTS OF JUSTICE. 



Their Designation. 

(9) § 1. The Several Courts of The State.— The following are 
Courts of Justice in this State : 

1. The Court for Trial of Impeachments. 

2. The Supreme Court. 

3. The Circuit Courts, to wit: (1) A Court of Common Pleas; and (2) 
A Court of General Sessions. 

4. County Courts. 

5. Probate Courts. 

6. Magistrates Courts. 

7. Civil and Criminal Court of Charleston. 

8. City Court and Police Court of Charleston. 

9. Mayors and Municipal Courts. 

Civ. Pro., '12, § 9 ; Civ. Pro., '02, § 9 ; 1870, 423, § 9 ; Con. Art. V, 1 ; 1903, XXIV, 
S9; 1911, XXVII. 16. 

(10) § 2. Their Jurisdiction Grenerally. — These courts shall exercise 
the jurisdiction now vested in them respectively, except as otherwise 
prescribed by this Code of Procedure or the laws of the State. 

Civ. Pro., '12, § 10; Civ. Pro., '02, § 10; 1870, XIV, 423, § 10; 1903, XXIV, 89; 
1911, XXVII, 16. 



Chapter 


I. 


Chapter 


II. 


Chapter 


III. 


Chapter 


IV. 


Chapter 


V. 


Chapter 


VI. 


Chapter 


VII. 


Chapter 


VIII. 


Chapter 


IX. 



TITLE n. 

OF COURTS AND JUDICIAL OFFICERS. 

Of the Supreme Court, its OiScers and Jurisdiction, 4. 

Of the Circuit Courts and Judges, Circuits and Terms of 
Courts, 17. 

Of County Courts, 39. 

Of the Probate 'Courts, 61. 

Of the Court of Magistrates, 74. 

Of the Civil and Criminal Court of Charleston, 86. 

Of the City Court and the Police Court of Charleston, 90. 

Of Attorneys, Solicitors and Counsellors, 95. 

Of Special Provisions Respecting Courts and the Admin- 
istration of Justice, 99. 



CODE OF CIVIL PROCEDURE 

CHAPTER I. 

Supreme Court, Its Officers and Jurisdiction. 



Article 1. Of the Supreme Court and its Officers, 4. 
Article 2. Of the Supreme Court and its Jurisdiction, 9. 



ARTICLE I. 

Supreme Court And its Officers. 

(11) § 1. Members of Supreme Court^ — Election, Term of Office, 
Quorum — Adjournment. — The Supreme Court shall consist of a Chief 
Justice and four Associate Justices, who shall be elected by a joint 
viva voce vote of the General Assembly, for the term of ten years, and 
shall continue in office until their successors are elected and qualified, 
and shall be so classified that one of them shall go out of office every two 
years. Any three of the Justices shall constitute a quorum. It shall be 
the duty of all the Justices to be present, and the Chief Justice shall 
preside. In the absence of the Chief Justice, the Justice oldest in service 
shall preside. If at any stated term of the Court a quorum thereof shall 
not attend on the first day of the term, the Justice or Justices attending 
shall have the authority to adjourn the Court from day to day for ten 
days after the time appointed for the commencement of the said term, 
unless a quorum shall sooner attend; or unless a sufficient number of 
men learned in the law, commissioned by the Governor, as provided in 
Section 11 of this Article, to make a quorum shall sooner attend; 
and the business of- the Court shall not in such case be continued over to 
the next stated term thereof, until the expiration of said ten days. 

Civ. '12, § 3815 ; Civ. '02, § 2721 ; Const., Art. V, § 2 ; 1896, XXII, 3. 

(12) § 2. Tenure of Office. — The present Chief Justice and Associate 
Justices of the Supreme Court are declared to be the Chief Justice and 
three of the Associate Justices of said Court until the terms for which 
they were elected shall expire. 

Civ. '12, § 3816 ; 1911, XXVII, 89. 

(13) § 3. Term of Office. — The term of office of the fourth Associate 
Justice shall commence upon his election and qualification and shall 
expire on the thirty-first day of July, in the year nineteen hundred and 
twenty. Hereafter the successors of the Chief Justice and Associate Jus- 
tices shall each be elected at the session of the General Assembly next 
preceding the expiration of their respective terms, for a term of ten 
years. 

Civ. '12, § 3817; 1911, XXVII, 89. 

A judge elected to fill vacancy holds only for the unexpired term. Simson v. Willard, 
14 S. C. 191. 

(14) § 4. Qualification. — The Justices of the Supreme Court shall 
qualify within twelve months after the date of their election by taking 



OF SOUTH CAROLINA . 5 

tlie Constitutional oath or the office shall be declared vacant by the Gov- 
ernor. The oath shall be administered by a Justice of said Court or by a 
Circuit Judge. 

Civ. '12, § 3818; Civ. '02, § 2722; G. S. 2090; R. S. 2222; 1896, XXII, 3. 

(15) § 5. A Court of Record. — The Supreme Court shall be a Court 
of Record, and the records thereof shall at all times be subject to the in- 
spection of the citizens of the State or other persons interested. The 
records shall be kept in a manner prescribed by the Justices of the Court. 

Civ. '12, § 3819 ; Civ. '02, § 2723 ; G. S. 2091 ; R. S. 2223 ; 1896, XXII, 3. 

(16) § 6. Appointment of Messenger and Attendant — Term of 
Office — Salary. — The Supreme Court shall appoint a Messenger of the 
Court, and an Attendant, to hold for the term of four years, and subject 
to removal by the Court, and shall prescribe the duties of the officers so 
appointed. The Messenger shall receive an annual salary of two hun- 
dred dollars. The Attendant shall receive a salary of two hundred dol- 
lars. 

Library in Care of Clerk. — The library of the Supreme Court shall be 
in the custody and care of the Clerk of said Court, who shall annually, 
with the consent and approval of the Court, employ some suitable person, 
as a departmental clerk, to care for and attend in the library and perform 
such duties with reference thereto as may be prescribed by the Court. The 
librarian so employed may be discharged by order of the Court at any 
time, and shall receive such compensation as may be provided by law. Any 
woman who has attained the age of twenty-one years, and has been a resi- 
dent of this State for two years may be employed as such librarian. 

Civ. '12, § 3820 ; Civ. '02, § 2724 ; G. S. 2094 ; R. S. 2226 ; 1896, XXII, 3 ; 1918, XXX, 
788. 

(17) § 7. Clerk — Fees and Salary. — The Supreme Court shall also 
appoint a Clerk, who shall hold his office for four years, and who shall 
have the custody and keeping of its records, and shall furnish certified 
copies thereof to persons desiring the same, upon the payment of the 
fees prescribed by law. And he shall receive a fee of fifty cents for each 
remittitur in civil eases, to be- taxed as their costs and disbursements, 
and a similar fee for each certificate. His salary shall be eight hundred 
dollars per annum, to be paid out of the State Treasury, on the warrant 
of the Comptroller General. 

Civ. '12, § 3821; Civ. '02, § 2725; R. S. 2234-2236; G. S. 2109-2111; 1896, XXII, 3. 

Increase of salary by appropriating larger amount for salary than fixed by statute. Brooks v. 
Jones, 80 S. 0. 443, 61 S. E. 946. 

(18) § 8. Reporter to Be Appointed — Duties and Salary — Committee 
on Publication of Reports — Alternative Contracts. — The Supreme Court 
shall appoint a Reporter for the term of four years, who shall take the 
constitutional oath before any one of the Justices or the Clerk of the Su- 
preme Court. The Clerk of the Supreme Court of this State is hereby 
required, upon the rendition of an opinion by the Supreme Court, to deliver 
forthwith to the Reporter of said Court a certified copy of all such decisions 
made by the Court, together with a copy of the printed arguments and the 
brief of counsel, for use in publishing the South Carolina Reports, as 



6 CODE OF CIVIL PROCEDURE 

hereinafter provided ; should any copies furnished bj^ the said Clerk be used 
in the publication of any other reports than the official series of South 
Carolina Reports, the publisher shall pay the said Clerk the fees now pro- 
vided by law for copies of opinions. 

At the beginning of each session of the General Assembly, the Speaker 
of the House of Representatives and President of the Senate are hereby 
authorized and required to appoint a committee of three, composed of 
two members of the House of Representatives, to be appointed by the 
Speaker, and one member of the Senate, appointed by the President of 
the Senate, which committee shall each year contract for a year at a time 
for the prompt editing, publishing and distribution of the said opinions, 
and bound volumes thereof, in one of the two methods hereinafter set forth, 
as in its opinion may seem best, to wit : 

(a) To contract with some competent editing, publishing and print- 
ing company to edit, publish and distribute promptly such decisions and 
bound volumes, and, if this form of contract be entered into, the Re- 
porter of the Supreme Court shall forthwith deliver to such publisher 
copies of the decision, briefs and arguments in each case, and for such 
services faithfully performed, shall receive a salary of three hundred 
dollars a year. 

(b) Second Form of Contract. — To contract with the Reporter of the 
Supreme Court to edit the reports of the cases decided by the Supreme 
Court, and with a competent publisher and printer, to print and distribute 
the same promptly; if this form of contract is entered into, the Reporter 
of the Supreme Court, for his services faithfully and promptly performed, 
shall receive a salary of one thousand three hundred dollars a year. 

The reports of the decisions, in either form of contract, shall contain at 
least such matter as is now found in the South Carolina Reports for the 
year 1917, including a syllabus of the decisions, citations, statements of 
the testimony and pleadings sufficient to give an understanding of the 
case and the decision of the court, and an alphabetical list (at the end of 
the volume) of all cases mentioned in any way in the decisions, and a full 
and complete digest and index to the contents of the volume. Each vol- 
ume shall contain not more than one thousand pages, exclusive of index. 

Civ. '12, 3822; Civ. '02, 2726; G. S. 2102-2108; R. S. 2237-2241; 1896, XXII, 3; 
1901, XXIII, 622; 1920, XXXI, 1049. 

(19) § 9. Salaries of Justices. — The Chief Justice and Associate Jus- 
tices holding office prior to the Act approved March 1, 1919, shall each 
receive an annual salary of three thousand dollars and they shall not be 
allowed any fees or perquisites of office, nor shall they hold any other 
office of trust or profit under the State, the United States or any other 
power. 

Upon the expiration of their present terms of office the said Justices of 
the Supreme Court shall receive an annual salary of forty-five hundred 
($4,500) dollars each. For permitting the members of the Supreme Court 
opportunity for conference and consultation for a period of ninety days 
(if so much be required) in the City of Columbia, succeeding each term 
or recess of said court, the sum of fifteen hundred, ($1,500) dollars for 



OF SOUTH CAROLINA 7 

each member of said court: Provided, That the provisions thereof shall 
not apply unless the Justices, or a majority thereof, shall consent as 
herein contemplated: Provided, further, That the provisions herein set 
forth for expenses shall determine upon the election of their successors, 
respectively. 

Civ. '12, § 3S2.S; Civ. '02, § 2727; G. S. 2088; R. S. 2220; 1001, XXIII, 622; 1905, 
XXIV, 845; 1917, XXX, 131; 1919, XXXI, 101. 

(20) § 10. Vacancies — How Filled. — All vacancies in the Supreme 
Court shall be filled by elections as herein prescribed : Provided, That if 
the unexpired term does not exceed one year such vacancy may be filled 
by Executive appointment, but when a vacancy is so filled by either ap- 
pointment or election the incumbent shall hold only for the unexpired 
term of his predecessor. 

Civ. '12, § 3824 ; Civ. '02, § 2728 ; G. S. 2088 ; R. S. 2220 ; 1901, XXIII, 622. 

(21) § 11. Justices Disqualifiecl in Certain Cases — Special Justices. — 

No Justice shall preside in any case, or at the hearing thereof, in which 
he may be interested, or Avhen either of the parties shall be connected 
with him by affinity or consanguinity within the sixth degree, or in 
which he may have been counsel, or has presided in any inferior court. 
In cas'e all or any of the Justices of the Supreme Court shall be thus dis- 
qualified, or be otherwise prevented from presiding in any cause or 
causes, the Court, or the Justices thereof, shall certify the same to the 
Governor of the State, and he shall immediately commission specially the 
requisite number of men learned in the law for the trial and determina- 
tion thereof. When such appointments are made by the Governor, the 
actual traveling expenses of such person, and his actual expenses while 
so sitting, shall be paid by the Governor out of his civil contingent fund, 
on an itemized statement of such expenses certified by the person so ap- 
pointed and serving. 

Civ '12, § 3825 ; Civ. '02, § 2729 ; Const., Art. V, 6 and 12 ; 1887, XIX, 85. 

Sections 13 to 20, and 23 and 24, of the Act of 1896, XXII, 3, for the organization of 
the Supreme Coiirt referring to its jurisdiction and the procedure therein, are transferred 
to §§ 26 to 29 of this Code of Civil Procedure, which see. 

Objection must be made at trial. The town of Clinton v. Leake, 71 S. C. 22, 50 S. E. 541. 

(22) § 12. Assignment of Roster of Circuit Judges — Duties of Clerk 
— Compensation. — Between the first and fifteenth days of December in 
each year the Chief Justice, or in his absence or inability to attend, the 
senior Associate Justice, shall form a roster of the Circuit Judges of the 
several circuits in order to arrange a regular and continuous assignment 
and interchange of circuits among said Judges, and make an order as- 
signing the several Circuit Judges to hold the several Circuit Courts in 
all of the circuits of the State for the whole of the succeeding year in 
such order as will effect a continuous interchange of circuits according 
to said numerical series. Immediately thereupon the Chief Justice, or, 
in his absence or inability to act, the senior Associate Justice, shall direct 
the Clerk of the Supreme Court to furnish each of the Circuit Judges, as 
well as the Chief Justice and senior Associate Justice, with a certified 
copy of said order, which shall be sufficient notice to the said Circuit 
Judges of their assignment aforesaid, and they shall proceed to hold 



8 CODE OF CIVIL PROCEDURE 

the courts in the circuits to which they are respectively assigned at 
the time appointed by law for the several Circuit Courts to be held, and 
the Clerk of the Supreme Court shall also forthwith transmit a certified 
copy of said order to the clerk of every Circuit Court of the State. As 
a compensation for the services thus required of the Clerk of the Su- 
preme Court, he shall be entitled to draw from the State Treasurer, upon 
the warrant of the Comptroller General, who is hereby directed to issue 
the same, the sum of ten dollars, to be paid out of any money in the State 
Treasury not otherwise appropriated. 
Civ. '12, § 3826 ; Civ. '02, § 2730 ; 1896, XXII, 3. 

(23) § 13. May Require Sheriffs to Serve Process, Etc. — The Supreme 
Court is empowered to require the sheriff of each and every county to 
whom any order or process issuing from said Court may be directed to 
serve and execute the same, and shall have the same power to enforce 
such service and execution and to punish default thereon as is vested in 
Circuit Courts in processes issuing therefrom. The sheriff and clerk of 
each and every county, whenever required, shall attend any hearing in 
any case by any of the Justices at the court house in any of the counties. 

Civ, '12, § 3827; Civ. '02, § 2731; 1896, XXII, 3. 

(24) § 14. — Distribution of Reports of Supreme Court. — The State Li- 
brarian shall distribute the copies of the Reports of the Decisions of the 
Supreme Court of South Carolina purchased by the State as follows : To 
the office of the Governor of the State, of the Attorney General of the 
State and of the Attorney General of the United States, one copy each ; 
to the Circuit Judges of the State, one copy each; to the Library of the 
Supreme Court of the United States, the Congressional Library at Wash- 
ington City, the Clerk of the Circuit Court of Appeals of the United 
States for the Fourth Circuit, the Library of the South Carolina Univer- 
sity, the Charleston Library Society, and the Clerk of the Circuit Court 
of the United States for the District of South Carolina, one copy each; 
to the Library of the Supreme Court of this State, eight copies; to every 
State and Territory of the United States from which this State receives 
two or more copies of each volume of their law reports, two copies each ; 
and to every other State and Territory of the United States, one copy 
each; and all copies of South Carolina Reports, not heretofore disposed 
of and not distributed under the provisions of this Section, shall be re- 
tained in the State Library for the use of this State. 

Civ. '12, § 3828 ; Civ. '02, § 2732 ; G. S. 2107 ; R. S. 2242 ; 1880 ; XVII, 533 ; 1008, 
XXV, 1128 ; 1917, XXX, 64. 

(25) § 15. Costs in Actions Brought in Original Jurisdiction of Su- 
preme Court. — In all actions and proceedings brought in the Supreme 
Court in its original jurisdiction, the Court shall have the power to pro- 
vide, by rule, order or otherwise, for the payment of reasonable costs and 
disbursements of the case by the losing party, or otherwise, as in the 
judgment of the Court may be just and proper, such costs and disburse- 
ments to be taxed and adjusted by the Clerk of said Court under direc- 
tion of the Court ; that when the Clerk has taxed such costs and disburse- 



OF SOUTH CAROLINA 9 

ments under the direction of tlie Court, he shall certify' the taxation to 
the Clerk of the Court of Common Pleas for the county in which the 
party resides against whom such costs and disbursements have been 
taxed; that the said Clerk of the Court of Common Pleas shall enter 
judgment therefor, as other judgments are entered, and shall issue exe- 
cution for the enforcement of said judgment; that the judgment so en- 
tered shall have the same force and effect in all respects as judgments 
rendered by the Court of Common Pleas : Provided, That in no case shall 
the costs exceed the sum of one hundred dollars. 
Civ. '12, § 3S29; 1909, XXVI, 162. 



ARTICLE II. 

Supreme Court And Its Jurisdiction. 

(26) § 1. Jurisdiction of Supreme Court. — (A) The Supreme 
Court shall have power to issue writs or orders of injunction, mandamus, 
quo warranto, prohibition, certiorari, haleas corpus and other remedial 
and original writs : each of the Justices of the Supreme Court shall have 
the same power at chambers, to administer oaths, issue writs of haheas cor- 
pus, mandamus, quo warranto, certiorari, prohibition and interlocutory 
writs or orders of injunction as when in open Court : Provided, an appeal 
shall be allowed from his decision to the Supreme Court. 
Civ. Pro., '12, § 11; Civ. Pro., '02, § 11; 1896, XXII, § 1. 

Appeals from a Justice are of same nature as appeals from Circuit Court. Western Union 
Tel. Co. V. Winnsboro, 72 S. C. 43, 51 S. E. 528. 

Proceedings for injunction in original jurisdiction. British American Mortgage Co v. Jones, 
76 S. C. 218, 56 S. E. 983; Dillingham v. Spartanburg, 75 S. C. 549, 56 S. E. 381, 117 
Am. St. Rep. 917. 9 Am. & Eng. Ann. Cas. 829, 8 L. R. A., N. S., 412. 

Certiorari to Governor. Rawlinson v. Ansel, 76 S. C. 395, 57 S. E. 185, 11 Am. & Eng. 
Ann. Case 613. 

(B) Where Issues of Fact Arise. — "Whenever in the course of any 
such action or proceeding in the Supreme Court, arising in the exercise 
of the original jurisdiction conferred upon the Court by the Constitution 
and laws of the State, an issue of fact shall arise upon the pleadings, or 
when an issue of fact shall arise upon a traverse to return in mandamus, 
prohibition, certiorari, or whenever the determination of any question 
of fact shall be necessary to the exercise of the jurisdiction conferred upon 
the Supreme Court, the said Court shall have power to frame an issue 
therein and certify the same to the Circuit Court for the county wherein 
the cause shall have originated, or in case of original jurisdiction to the 
Circuit Court of tlie county in which the cause of action shall have arisen. 
The Supreme Court shall also have the same powers as are now possessed 
by the Circuit Court of the State for the appointment of Referees to take 
testimony and report thereon, under such instructions as may be pre- 
scribed by said Court, in any cases arising in the Supreme Court wherein 
issues of fact shall arise. 

Civ. Pro., '12, § 11; Civ. Pro., '02, § 11; 1896, XXII. § 1. 

The Court has power to appoint a Referee to take testimony of a party declining to make 
an afadavit in proceedings before it. State v. Marks, 70 S. C. 448, 50 S. E. 14. 

If in a case for an injunction to remove a cloud on a title it becomes necessary to settle an 
issue of title, this Court can certify that issue to the Circuit Court to be tried by a jury. 
Trustees of University of South Carolina v. Trustees of Academv of Columbia, 85 S. C. 546, 
67 S E. 951. 



10 CODE OF CIVIL PROCEDURE 

(C) Appellate Jurisdiction in Chancery. — The Supreme Court shall 
have appellate jurisdiction only in cases of chancery, and in such appeals 
they shall review the findings of fact as well as the law, except in chancery 
eases when the facts are settled by a jury and the verdict not set aside. 

Civ. Pro., '12, § 11 ; Civ. Pro.. -02. § 11 : 1896, XXII, § 1. 

In eqiiity cases appellant has burden of showing that the findings of the Ap"p'H'p ^^ • 
were against the preponderance of the evidence. Boatwright v. Crosby, 83 S. 0. 190, 65 S. E. 
175; Tindal v. Sublett, 82 S. 0. 199, 63 S. E. 960. 

(D) Appellate Jurisdiction in Law Cases. — The Supreme Court shall 
have appellate jurisdiction for correction of errors of law in law cases, and 
shall review upon appeal : 

1. Any intermediate judgment, order or decree in a law case involving 
the merits in actions commenced in the Court of Common Pleas and Gen- 
eral Sessions, brought there by original process, or removed there from 
any inferior court or jurisdiction, and final judgments in such actions : 
Provided, If no appeal be taken until final judgment is entered, the Court 
may upon appeal from such final judgment review any intermediate order 
or decree necessarily affecting the judgment not before appealed from. 

Civ. Pro., '12, § 11 ; Civ. Pro., '02, § 11 ; 1896, XXII, § 1. 

An order to involve the merits must finally determine some substantial right in the case. 
Henderson v. Hyatt, 8 S. C. 112; Blakely v. Erazier, 11 S. C. 122. 

The terms "involving the merits" and "necessarily affecting the judgment" are equivalent. 
Blakely v. Frazier, 11 S. C. 122. 

What orders involve the merit and are so reviewable before judgment : 

An order setting aside verdict for plaintiff without notice to him. Williams v. Charleston 
7 S. C. 71. 

An order refusing to change place of trial to county where defendant resides. Blakely v. 
Frazier, 11 S. C. 122. 

An order refusing an oral demurrer. Elliott v. Pollitzer, 24 S. C. 86; McCown v. McSween, 
29 S. C. 130, 7 S. E. 45. 

An order refusing to allow an amendment, upon legal grounds. Sibley v. Young, 26 S. C. 415, 
2 S. E. 314. 

An appeal from an order of reference on jurisdiction grounds. Sims v. Phillips, 46 S. 0. 
149, 24 S. E. 99. 

An order of reference that deprives party of mode of trial which the law allows him. 
Ferguson v. Harrison, 34 S. 0. 169, 13 S. E. 332; McLaurin v. Hodges, 43 S. 0. 187, 20 S. E. 
991; Alston v. Limehouse, 61 S. C. 1, 39 S. E. 192. 

Orders that are based upon error in law and will prejudice trial. Bank v. Stelling, 32 S. C. 
102, 10 S. E. 766; Seas v. Dobson, 34 S. C. 345, 13 S. E. 530; Capell v. Moses. 36 S. C. 
559, 15 S. E. 711; State v. P. R. & A. Ry. Co., 45 S. C. 470, 23 S. E. 383. 

An appeal from an intermediate order, leaving unaffected a former order, is conclusive 
of appeal from former order. Pringle v. Sizer, 7 S. C. 131. 

What orders do not involve the merits and are not reviewable before judgment: 

Orders refusing motions to make pleadings more definite and certain. Fladger v. Beckman, 
42 S. C. 547, 20 S. E. 790; Hawkins v. Wood, 60 S. 0. 521, 39 S. E. 9. 

An order requiring security for costs or nonsuits, and an order discharging Clerk on rule 
for refusing to enter judgment, and reinstating the case. McMillan v. McCall, 2 S. C. 390. 

Orders on motion to dissolve attachment. Allen v. Patton, 3 S. C. 418; Clausen v. Easterling, 
13 S. C. 519. 

An order of Circuit Court allowing appeal, which had been denied by Probate Court, 
as it merely affects form of procedure. Henderson v. Hyatt, 8 S. C. 112. 

An order refusing nonsuit. Agnew v. Adams, 24 S. C. 86. 

2. An order affecting a substantial right made in an action, when such 
order in effect determines the action and prevents a judgment from which 
an appeal might be taken, or discontinues the action, and when such order 
grants or refuses a new trial; or when such order strikes out an answer 
or any part thereof, or any pleading in any action ; upon any appeal from 
an order granting a new trial on a case made, or on exceptions taken, if 
the Supreme Court shall determine that no error was committed in grant- 
ing the new trial, it shall render judgment absolute upon the right of the 
appellant ; and after the proceedings are remitted to the Court from which 
the appeal was taken, an assessment of damages, or other proceedings to 



OF SOUTH CAROLINA 11 

render the judgment effectual, may be then and there had in cases where 
such subsequent proceedings are requisite. 

Civ. Pro., '12, § 11; Civ. Pro., '02, § 11; 1896, XXII, § 1; 1901, XXIII, 623. 

"What orders are appealable under this subdivision : 

An order refusing leave to defendant to file his answer and giving judgment by default 
against him. Ayer v. Chassereau, 18 S. C. 597. 

Orders refusing nonsuit and, after verdict, a new trial. Moor v. Smith 24 S. C. 319. 

Doubted whether an order concerning security for costs is, unless it terminates action 
by nonsuit. Johnson v. Cobb, 29 S. C. 372, 7 S. E. 601. 

An order granting or refusing new trial, where some question of law influenced the 
decision. Bvrd v. Small 2 S. C. 388; Durant v. Philpot, 16, S. C. 116; Boyd v. Munro, 
32 S. 0. 249, 10 S. E. 963. 

Orders as to amendments made upon clearly erroneous legal grounds. Bowden v. Winsmith, 

11 S. C. 411; Mason v. Johnson, 13 S. C. 23; Moore v. Johnson, 14 S. C. 436; Sibley v. 
Young, 26 S. C. 415, 2 S. E. 314; Lilly v. R. Co., 32 S. C. 142, 10 S. E. 932; Waring r. 
Miller, 36 S. C. 310, 15 S. E. 132. 

"An order granting a new trial on a case made on exceptions taken" construed to embrace 
an order granting a new trial on the minutes. Caston v. Brock, 14 S. C. 104. 

Order granting new trial in Circuit Court on appeal from verdict of jury in condemnation 
proceedings. Atlantic Coast Line R. R. Co. v. S. B. R. R. Co., 57 S. C. 317, 35 S. E. 555. 

Order of nonsuit taken by plaintiff appellant. Parsons v. Gibb, 59 S. C. 215, 37 S. E. 753. 

An order sustaining a demurrer, which has the effect of striking out a part of the com- 
plaint, is appealable. Miles r. Charleston Light, etc. Co., 87 S. C. 254, 257. 

What orders are not : 

An order, though it affects substantial right, unless it prevent judgment. Allen v. Partlow, 
3 S. C. 417; Garlington v. Copeland, 25 S. C. 41. 

An order sustaining demurrer to complaint, with leave to amend on payment of costs. 
Cureton v. Hutchinsin, 3 S. C. 606. 

Order allowing amendment to pleading, where the amendment is acted on by appellant. 
Baker v. Hornik, 51 S. C. 313, 28 S. E. 941; Clement v. Dean, 51 S. C. 317, 28 S. E. 943; 
Ruberg v. Brown, 50 S. C. 397, 27 S. E. 873. 

Orders on motion to open default judgment. Buttz r. Campbell, 15 S. C. 614: Truett v. 
Rains, 17 S. C. 453. 

A judgment by default. Washington v. Hesse, 56 S. C. 28, 33 S. E. 787. 

An order granting or refusing new trial for error of fact. Floyd v. Abnev, 1 S. C. 114; Elmore 
V. Scurry, 1 S. C. 139; Abrams v. Kellv, 2 S. 0^ 235; Bvrd v. Small," 2 S. C. 388; Massev 
r. Adams, 3 S. C. 265; Winsmith r. Walker, 5 S. C. 473; Gibbes v. Elliott, 8 S. C. 50 
Brickman v. R. R., 8 S. C. 173; Clark r. Harper, 8 S. C. 256; Bardin v. Drafts, 10 S. C 
493; Lanier r. Griffin, 11 S. C. 584; Steele v. R. R., 11 S. C. 589; Warren v. Lagrone 

12 S. C. 46; Bank v. Garv, 14 S. C. 572; State v. Clark, 15 S. C. 407; Donaldson v. Ward 

20 S. C. 585; Blakeley v. Prazier, 20 S. C. 144; Altee v. S. 0. Co., 21 S. C. 559; Epstin v. Brown 

21 S. C. 599; Walker v. R. R., 25 S. C. 141; State v. Nance, 25 S. C. 168; Wolf v. R. R., 25 S. C 
379: Agnew v. Adams, 26 S. C. 101, 1 S. E. 414; Glover v. Burbridge, 27 S. C. 305, 3 S. E. 471 
Dial V. Agnew, 28 S. C. 454, 6 S. E. 295; Riggs v. Wilson, 30 S. C. 172. 8 S. E. 848 
McCord ?-. Blackwell, 31 S. C. 126: Brown v. Thomson, 31 S. C. 436, 10 S. E. 95 
Cantrell v. Fowler. 32 S. C. 589, 10 S. E. 934; Johnston v. Holmes, 32 S. C. 434. 11 S. E. 208 
State V. White, 34 S. C. 59, 12 S. E. 661; Durant v. Durant, 36 S. C. 49, 14 S. E. 929 
Frick V. Wilson, 36 S. C. 65, 15 S. E. 331; Pelzer v. Sun, 36 S. C. 213, 15 S. E. 562 
State V. Haines, 36 S. C. 505, 15 S. E. 555: Webster v. Ahrens, 36 S. C. 585, 15 S. E. 732 

Order granting or refusing continuance. State v. Atkinson, 33 S. C. 100, 11 S. E. 693 
State V. Wyse 33 S. C. 582, 12 S. E. 556. 

Generally as to this Section : 

The Supreme Court has appellate jurisdiction in cases of chancery alone; it can correct 
errors of law onlv in cases at law, and cannot review the facts. Cons., Art. 4, Sec. 4; Sullivan 
V. Thomas, 3 S. " C. 531; Whalev v. Bank, 5 S. C. 201; Gibbes v. Elliott, 8 S. C. 50; State 
V. Cardozo, 11 S. C. 222; .Toplin r. Carrier, 11 S. C. 329; Brice v. Hamilton, 12 S. C. 34; 
Maxwell v. Thompson, 15 S. C. 612; Kappan v. Rvan, 16 S. C. 358; Cowan v. Neel, 17 S. C. 
589; Crawford v. Crawford, 17 S. C. 523; Bowen v. R. R., 17 S. C. 579; Chapman v. 
Lipscomb, 18 S. C. 231; Ross v. Lindler, 18 S. C. 605: Caulfield r. Charleston, 19 S.C. 
601; Ex parte Reed, 19 S. C. 604; Blakelv v. Frazier, 20 S. C. 148; Donaldson v. Ward, 
20 S. C. 585; Gaffnev v. Peeler, 21 S. C. 66: Adickes r. Bratton, 21 S. C. 257; Copeland v. 
Young, 21 S. C. 287; Whitesides v. Barber, 22 S, C. 50; Davis v. Schmidt, 22 S. C. 133; 
McMahan v. Dawkins, 22 S. C. 322: State r. Columbia, 17 S. C. 83; Nichols v. R. R.. 
23 S. C. 604; Calvert v. Nickles, 26 S. C. 304, 2 S. E. 116; Hornsby v. R. Co., 26 S. C. 
187, 1 S. E. 594: State v. Prater, 26 S. C. 199, 2 S. E. 108; Duren v. Kee, 26 S. C. 219, 

2 S. E. 4; Moultrie v. Di.xon, 26 S. C. 296, 2 S. E. 24; Calvert v. Nickles, 26 S. C. 304, 2 S. E. 
110; Hubbard v Camperdown Mills, 26 S. C. 581, 2 S. E. 576; Clover v Burbridge, 27 S C 305, 

3 S. E. 471: State v. Glover 27 S. C. 602, 4 S. E. 564; Dial v. Agnew, 28 S. C. 454, 6 S. E. 
295; Johnston v. Holmes, 32 S. C. 434, 11 S. E. 208; Miller v. R. Co., 33 S. C. 359, 11 S. E. 
1093; Dobson v. Cothran, 34 S. C. 518, 13 S. E. 679; Draffin v. R. R. 34 S. C. 464, 13 S. E. 
427; State v. Robinson, 35 S. C. 340, 14 S. E. 766; Redfearn v. Douglass, 35 S. C. 569, 15 S. E. 
244; Thomson v. Dillinger, 35, S. C. 608, 14 S. E. 776; Durant v. Durant, 36 S. C. 49, 14 S. C. 
391. 

Appeals allowed under subdivisions 1 and 2 are those arising in the course of actions 
and are intended to affect the final judgment. Subdivision 3 provides appeals in matters 
of an independent nature or collateral to an action arising upon a special proceeding, 
or in matters arising upon a summary proceeding in an action after judgement, and 
such proceedings are not intended to disturb or to affect the judgment, but to give it efficiency. 
The summary applications under subdivision 3 are proceedings based upon the judgment 
and assuming its correctness, and if the object is to affect a judgment by setting it aside, 
reversing or modifving it, the appeal must be authorized by subdivisions 1 or 2. Cureton 
V. Hutchinson, 3 S. C. 606; Gibbes v. Elliott, 8 S. C. 62. 

An order refusing petition to be made a party is appealable. Rutledge v. Tunno, 63 S. C. 
205, 41 S. E. 308. " 

Powers of Supreme Court hereunder. Lamplev v. A. C. L. R. Co. 77 S. C. 319, 57 S. E. 1104. 



12 CODE OF CIVIL PKOCEDURE 

Refusal to strike out irrelevant and redundant allegations not appealable. Harbert v. 
Atlanta & Charlotte Air Line Ry. Co., 74 S. C. 13, 53 S. E. 1001; Cooper v. Railroad, 78 S. C. 
565, 59 S. E. 704. 

An order refusing new trial in an action where there is no evidence to support verdict 
is appealable. Gunter v. Fallow, 78 S. C. 457, 59 S. E. 70; State v. Shaw, 64 S. C. 569, 43 
S. E. 14, 92 Am. St. Rep. 817, 60 L. R. A. 801n; Colvin v. Oil Co., 66 S. C. 61, 77, 44 S. E. 380. 

Order refusing petition to be made a party is appealable. Rutledge v. Tunno, 63 S. C. 
205, 41 S. E. 308. 

Order refusing to strike out matter in pleadings as irrelevant or redundant is not appealable. 
Harbert v. Ry. Co., 74 S. C. 13, 53 S. E. 1001; Strait v. Mortgage Co., 77 S. C. 367, 57 S. E. 
,1100; Cooper v. Ry. Co., 78 S. C. 565, 59 S. B. 704. 

Order of reference, being purely administrative, is not appealable. Ijockwood v. Lockwood, 
73 S. C. 198. 53 S. E. 87; Hall v. McBride, 73 S. C. 227, 53. S. E. 368; Association v. 
Berry, 53 S. C. 129, 31 S. E. 53; Jones v. Haile Gold Min. Co., 79 S. C. 47, 54, 60 S. E. 35. 

Order extending time to answer after default not appealable. Bell v. Western Union 
Telegraph Co., 73 S. 0. 208, 53 S. E. 177. 

As to new trials see: Lampley v. A. C. L. R. Co., 77 S. C. 319, 57 S. E. 1104; Kennedy 
V. Greenville, 78 S. C. 128, 58 S. E. 989; Pace v. Ry. Co., 83 S. C. 33, 64 S. B. 915; Dixon 
V. Ry. Co., 83 S. C. 395. 65 S. E. 351; DesChamps v. Ry. Co., 83 S. C. 192, 65 S. E. 176. 

Order requiring answer to be made more definite and certain is not appealable. Dawkins 
V. Ry. Co.. 82 S. C. 166, 63 S. E. 746. 

Orders as to recommitting case to referee being discretionary. Westfleld i\ Westfield, 13 S. 0. 
482; Watkins v. Lang, 17 S. C. 13; Symmes v. Svmmes, 18 S. C. 601; Lowndes v. Miller, 25 
S. 0. 119; Smith v. Thomason, 26 S. C. 607, 12 S. E. 96; Hubbard v. Camperdown Mills, 

26 S. C. 581, 2 S. B. 576. 

An interlocutory order of injunction, "without prejudice." Garlington v. Copeland, 25 S. 0. 
41. 

Orders, on motions for continuance. State v. Dodson, 16, S. C. 459; Crawford v. Schmidt, 16 
R. C. 634; Symmes v. Symmes, 18 S. C. 601; Garvin v. Garvin, 21 S. 0. 92; Douthit v. 
Westfield, 22 S. C. 588; Sawyer v. Senn, 27 S. C. 251, 3 S. E. 298; State v. Atkinson, 
33 S. C. 100, 11 S. E. 693: State v. Wise, 33 S. C. 582, 12 S. E. 556; Latimer v. Latimer, 42 
S. C. 205,20 S. E. 159. 

An order referring it to Master to take testimony as to claims in case. Palmetto Co. v. 
Riseley, 25 S. C. 309; Jones v. Trumbo. 29 S. C. 26, 6 S. E. 887. 

An order refusing a reference to take testimony in a chancery case. Farmers Ins. Co., v. 
Berry, 53 S. C. 129, 31 S. E.. 53. 

An order refusing to refer issue to a jury in a chancery case. Hammond v. Foreman, 43 S. C. 
264, 21 S. E. 3. 

An order transferring case from one calendar to another to try issues involved. Knox v. 
Campbell, 52 S. C. 461, 30 S. E. 485. 

An order granting a new trial nisi. Stuckey v. Ry. Co., 57 S. C. 395, 35 S. E. 550. 

An order refusing motion to submit issues of fact to a jury in equity case. Dupont v. 
DuBose, 33 S. C. 389, 11 S. E. 1073. 

It has been frequently held that an appeal will not lie from a verdict. All v. Hiers, 59 S. C. 
557, 558, 38 S. E. 157; Hutmacher v. Charleston Consol., etc., Co., 63 S. C. 123, 124, 40 S. E. 
1039; Brock v. Kirkpatrick, 69 S. C. 231, 233, 48 S. E. 72. 

What orders reviewable on appeal from final judgment : 

An order sustaining a demurrer to complaint, with leave to amend on paj'ment of costs. Cureton 
V. Hutchinson. 3 S. C. 606. 

Order overruling demurrers. Mobley v. Cureton, 6 S. C. 55. 

All material rulings and charges of Cuircuit Judge excepted to. Brice v. Hamilton, 12 S. C. 35. 

An order denying the right to open and reply. Bennett v. Sandifer, 15 S. 0. 418. 

An order requiring referee's report to be printed for Circuit Court. Scott v. Alexander, 

27 S. C. 15. 2 S. B. 706. 

The Supreme Court is not restricted to such review of only such orders as have been 
appealed from within ten days and the case for appeal thereon made up within thirty 
days; but it may review any order affecting the final judgment, whether appealed from or 
not. Hvatt i). McBurney, 17 S. C. 150; Lee v. Fowler, 19 S. C. 607; Thatcher v. Massey, 
20 S. C. 547: Bomar v. R. Co., 30 S. C. 450, 9 S. E. 512; Sullivan v. Latimer, 32 S. C. 281, 
10 S. E. 1071: McCrady v. Jones, 36 S. C. 136, 15 S. E. 430; Wallace v. R. Co., 36 S. C. 599, 15 
S. E. 452; Morgan v Smith, 57 S. C. 49, 37 S. E. 44. And such review includes all rulings and 
charges material to the judgment though no motion for new trial was made to Circuit Court. Brice •;;. 
Hamilton, 12 S. C. 32. 

And upon appeal from a final judgment, rendered after appeal from an intermediate 
order by one party, the other party may review such order. Hyatt v. McBurney, _ 17 S. C._ 143. 

Is a decree which allows judgment for foreclosure "as soon as the amount is ascertained" 
such reviewable intermediate order? Wallace v. Carter, 32 S. C. 314 11 S. B. 97. 

The better practice is to await appeal from final order and then review intermediate orders. 
Capell V. Moses. 36 S. C. 559, 15 S. E. 711. 

What orders not so reviewable : 

An order of inferior Court not final nor involving the merits. McWilliams v. McCall, 
2 S. C. 393: Donaldson v. Bank, 4 S. C. 114. 

Final judgments : 

The decision disposing of all the issues and directing judgment for amount, with interest, 
to be calculated by the Clerk, is a final judgment. Adickes v. Allison, 21 S. C. 245. In 
action at law, decision of Judge is not the final Judgment. lb. 

The decision of two Trial Justices upon habeas corpus proceedings before them is not 
appealable to Supreme Court but to Circuit Court. State v. Duncan, 22 S. C. 88. 

This subdivision mav not allow Supreme Court to hear appeal from City Court of Charles- 
ton. City Council v. Weller, 34 S. C. 357, 13 S. B. 628. 

When appeal may be taken from a default judgment. McMahon v. Fugh, 62 S. C. 509, 40 S. E. 
961. A motion to recommit to Master is not appealable. Halk v. Stoddard, 62 S. C. 563, 
40 S. E. 957. 

Appeal to Supreme Court from verdict on Circuit in condemnation proceedings. Mauldin 
V. Greenville, 64 S. C. 452, 42 S. E. 205. 

Appeal lies from intermediate decree on merits. Cauthen v. Cauthen, 70 S. C. 176, 49 S. E. 321. 

Appeal lies from interlocutory order granting temporary injunction. Lamar v. Groft, 
73 S. C. 410, 53 S. E. 540. 

Appeals from Justice of Supreme Court are of same* nature as appeals from Circuit Court. 
Western Union Tel. Co. v Town of Winnsboro, 72 S. C. 43, 51 S. E. 528. 



OF SOUTH CAROLINA 13 

Considered. Brock v. Kirkpatrick, 69 S. C. 233, 48 S. E. 72. 

The decision of Judge on issues of fact in law case is final. Guignard v. Flanagan, 
78 S. C. 487, 59 S. E. 362. 

Unless it is entirely supported by evidence. In re Solomon's Estate, 74 S. C. 189, 191, 54 
S. E. 207. 

In what cases Court may review findings of fact. In re Solomon's Estate, 74 S. C. 189, 54 
S. E. 207. 

Not in law cases. Rippy v. Smith, 77 S. C. 414, 57 S. E. 1097. 

May review findings in action to set aside a fraudulent transfer of assets. Townes, Trustee v. 
Stultz, 78 S. C. 366,' 59 S. E. 983. 

Proceedings for admeasurement of dower are actions at law, and findings of fact are not 
reviewable. Ex parte Wallace, 73 S. C. 109, 52 S. E. 873. 

In action to set aside deed, all issues referred to Master by consent, there is no appeal on 
findings of fact. .Tohnson v. Jones, 72 S. C. 270, 51 S. E. 805. 

In partition suit where tenancy in common is denied, there is no appeal from findings of 
fact. Corbett v. Fogle, 72 S. C. 312, 51 S. E. 884. 

No appeal from order refusing to open judgment and permit answer, unless there is 
abuse of discretion. McMahon v. Pugh, 62 S. C. 506, 40 S. E. 963. 

No appeal from order refusing to revoke order of reference. Hoik v. Stoddard, 62 S. C. 
564, 40 S. E. 957. 

Order striking out two names of two beneficiaries in action under Lord Campbell's Act, 
does not involve the merits and is not appealable. McDaniel v. A. C. L. R. R. Co., 76 S. C. 15, 
189, 56 S. E. 543, 956. 

Nonsuit and new trial. Lampley v. A. C. L. R. R. Co., 77 S. C. 319, 57 S. E. 1104. 

Appeal on question of nonsuit on ground of contributory negligence. Lyon v. C. & W. C. 
Ry., 77 S. C. 328, 58 S. E. 12. 

An order to make pleadings more definite and certain is appealable, when it deprives 
appellant of some substantial right. Epstin v. Herman, 78 S. C. 329, 58 S. E. 1013, citing Bolin 
V. Ry. Co., 65 S. C. 226, 43 S. E. 665; Lynch v. Spartan Mills, 66 S. C. 16, 44 S. E. 93. 

Order allowing temporary alimony is appealable. Order requiring party to show cause is not 
appealable. Messervy v. Messervj'," 79 S. C. 58, 60 S. E. 692. _ 

Order allowing amendment to pleading not appealable, when it in no respect affects the 
merits of the case. Buist v. Williams, 83 S. C. 321, 65 S. E. 343. 

An appeal from interlocutory order reviewed on appeal from final order. Wallace v. Ry. Co., 
36 S. C. 599, 15 S. E. 452. Although appeal from interlocutory order has been dismissed. 
Morgan v. Smith. 59 S. C. 51. 

In deciding motions for new trials the Circuit Court is not _ vested with arbitrary but 
judicial power, which must be exercised on legal grounds, else subject to reversal in order to 
create a manifest error. Miller v. A. C. L. R. R. Co., 95 S. C. 471, 79 S. E. 645. 

Refusal to strike out irrelevant allegations not appealable. Osteen v. A. C. L. R. R. Co., 
93 S. C. 61, 76 S. E. 25. 

When the Supreme Court finds no error on appeal from order granting new trial, judg- 
ment absolute will be rendered. Planters Oil Company v. Lightsey, 98 S. C. 3, 81 S. _E. 1102. 

An interlocutory administrative order, directing the Sheriff to seize property in claim 
and delivery action out of his county, does not involve the merits, hence not appealable 
under this Section. Easterling v. Odom, 98 S. C. 171; 82 S. E. 407. 

3. A final order affecting a substantial right made in any special pro- 
ceeding, or upon a summary application in any action after judgment, 
and upon such appeal to review any intermediate order involving the merits 
and necessarily affecting the order appealed from. 

Civ. Pro., '12, § 11 ; Civ. Pro., '02, § 11 ; 1896, XXII, § 1. 

An order setting aside assignment of homestead, made upon a summary application after 
judgment, affects a substantial right, and is appealable. Weatherby v. Jackson, 3 S. C. 228. 

Such final order on rule against Sheriff is appealable. Emory v. Davis, 4 S. C. 23. So is 
judgment in special proceeding under Agricultural Lien Act. Johnstone v. Manigault. 
13 S. C. 403. An order refusing appeal costs in special proceedings. Sease v. Dobson, 36 S. C. 
554, 15 S. E. 703. But an order dissolving attachment is not. Allen v. Partlow, 3 S. C. 417. 

An order refusing a writ of mandamus is. Ex parte Mackey, 15 S. C. 328. 

Order refusing to vacate order of arrest, under final process, is such final order and 
appealable; not reviewable under, as an intermediate order, on appeal from decree refusing 
to allow prisoner benefit of Insolvent Debtors' Act. Hurst v. Samuels, 29 S. C. 476, 
7 S. E. 822. 

Order on quo warranto containing a preliminary injunction does not involve the merits and 
is not appealable. State v. Westmoreland, 29 S. C. 1, 6 S. E. 847. 

Order in certiorari permanently staving proceedings below is such final order. Coleman i'. 
Keels, 30 S. C. 614, 9 S. E. 270". 

Appeal in condemnation proceedings. Mauldin v. Greenville, 64 S. C. 452, 42 S. E. 202. 

Error in granting new trial cannot be reviewed on appeal from judgment on a subsequent, 
trial. Kennedy v. Greenville, 78 S. C. 129, 58 S. E. 989. 

4. An interlocutory order or decree in the Court of Common Pleas, 
granting or continuing or modifying or refusing an injunction, or else 
granting or continuing or modifying or refusing the appointment of a 
Eeceiver hereafter granted in any action: Provided, That the notice of 
appeal must be given within ten days from written notice of the filing of 
such interlocutory order or decree ; and such appeal shall take precedence 
in the Supreme Court ; and the proceedings in other respects in the court 



14 CODE OF CIVIL PROCEDURE 

below shall not be stayed during the pendency of such appeal unless other- 
wise ordered by the court below. 

Civ. Pro., '12, § 11 ; Civ. Pro., '02, § 11 ; 1896, XXII, § 1. 

This Act of 1901 does not apply to orders made before its ratification. Alston v. Limeliouse, 

61 S. C. 1, 39 S. E. 192. Prior to this Act, an order dissolving a temporary injunction 
to restrain a sale made under mortgage was held appealable. Strom v. American Mortgage Co., 42 
S. C. 97, 20 S. E. 16. So also an order refusing to restrain a sale. Salinas v. Aultman, 49 S. C. 
325, 27 S. E. 385. So, generally, where the injunction is essential to the preservation 
or assertion of a legal right. Seabrook v. Mostowitz, 51 S. C. 433, 29 S. E. 202. But an order 
granting an interloctutory order of injunction is not appealable. S. C. & G. R. Co. v. Am. 
Tel., etc., Co., 58 S. 0. 21, 35 S. E. 797. Interlocutory order granting temporary injunction 
appealable. Lamar v. Croft, 73 S. C. 407, 53 S. E. 540. 

Order denying injunction appealable. South Bound R. R. v. Burton, 63 S. C. 348, 41 S. E. 
451. Interlocutory order restraining operation of ginnery appealalDle. Williams v. Jones, 

62 S. C. 472, 40 S. E. 881; Lamar v. Croft, 73 S. C. 411, 53 S. E. 540. 

Appeal from order dissolving temporary injunction not appealable after nuisance is abated. 
Wright V. Columbia, 77 S. C. 416, 57 S. E. 1096. 

(27) § 2. Powers of Court in Cases of Appeal. — The Supreme Court 
may reverse, affirm or modify the judgment, decree or order appealed from 
in whole or in part, and as to any or all of the parties, and the judgment 
shall be remitted to the Court below to be enforced according to law. When 
a judgment or decree is reversed or affirmed by the Supreme Court, every 
point made and distinctly stated in the cause and fairly arising upon the 
record of the case shall be considered and decided, and the reason thereof 
shall be concisely and briefly stated in writing and preserved in the record 
of the case. 

Civ. Pro., '12, § 12 ; Civ. Pro., '02, § 12 ; 1896, XXII, 7. 

Decisions — When Filed. — The Justices of the Supreme Court shall file 
their decisions in sixty days from the last day of the Court at which the 
cases were heard. 

Civ. Pro., '12, § 12 ; Civ. Pro., '02, § 12 ; 1896, XXII, 7. 

Opinion Attached by Clerk to Judgment — Fees. — The Clerk of the 
Supreme Court shall attach to the judgment remitted to the Court below, 
a copy of the opinion of the Supreme Court, if any, rendered in such 
cases, and shall receive as his fee for services in remitting the judgment 
and opinion the sum of one dollar and fifty cents in each case, to be taxed 
against the losing party, by the Clerk of the Court of Common Pleas, and 
when collected, by any officer or attorney, shall be remitted to the Clerk 
of the Supreme Court; and he shall be entitled to charge and collect a 
fee of one dollar and fifty cents for any opinion, judgment or order which 
he may furnish any party ordering same. 

Civ. Pro., '12, § 12; Civ. Pro., '02, § 12; 1904, XXIV, 389. 

Therefore, it has no power to grant leave to defendant to answer over. Johnson v. 
Dawkins, 20 S. 0. 533. It cann«t originally determine the right to counsel fees. Otis v. 
Brown, 20 S. C. 586. It can make no original decision upon a point not ruled below. 
Railroad Com. v. Railroad Co., 22 S. C. 231; Dulaney v. Elford, 22 S. C. 313. 

In case at law it cannot modify the judgment below; can only reverse or affirm. Hasford v. 
Wynn, 22 S. C. 313. 

Filing of petition for rehearing does not stay remittitur; there must be an order of 
one of the justices. Ex parte Dunovant, 16 S. C. 300. Stay of remittitur refused. State v. 
Jacobs, 28 S. 0. 609, 6 S. E. 577. Stay of remittitur rescinded. Enr parte Smith, 35 
S. C. 606, 15 S. E. 800. Motion to recall remittitur refused. State v. Merriman, 35 S. C. 607, 
14 S. E. 394. 

A remittitur which states that judgment below is aiifirmed is sufficient transcript of the 
judgment above. Ex parte Dial, 14 S. C. 586. 

Supreme Court loses jurisdiction when remittitur is issued, and not when filed below. 
Ex parte Dunovant, 16 S. C. 300; Brooks v. Brooks, 16 S. C. 621. 4.nd cannot entertain 
a motion for rehearing after it is issued. Sullivan v. Speights, 14 S. C. 360; Ex parte Dial, 
14 S. C. 585. 

The judgment when remitted cannot be altered or modified by the Circuit Court, but 
must be enforced. Pringle v. Sizer, 3 S. C. 337; Ex parte Dunovant, 16 S. C. 300; Ex parte 
Knox, 17 S. C. 217. 



OF SOUTH CAROLINA 15 

If judgment be affirmed, it needs no further action by the Circuit Court. Adger v. 
Pringle, 13 S. C. 36. And action of Circuit Court is not affected by pending motion to recall 
remittitur. Jb. 

A remittitur which orders a new trial in effect sets aside the verdict and judgment appealed 
from. State v. Stephens, 13 S. C. 287. 

After remittitur is sent down, this Court has no power to order it returned so as to 
correct errors. Carpenter v. Lewis, 65 S. C. 403, 43 S. E. 881. 

The Supreme Court has jurisdiction in an equity case to inquire if interlocutory injunction 
is properly dissolved and if there was an error in refusing to appoint a receiver. Lyles v. 
Williams, 96 S. C. 290. 80 S. E. 470. 

(28) § 3. Time of Meetings. — The Supreme Court shall hold annually 
at the seat of government two sessions, the one commencing on the second 
Tuesday in October and the other the second Tuesday in April, and each 
of said terms shall be continued for so long a period as the public interests 
may require. Additional terms may be appointed and held at such times 
and places as the Court may direct, when the public interest may require it. 
When any two of the Justices request the Chief Justice to call an extra 
term he shall do so. The Court may by general rules require and pro- 
vide what cases shall have preference on the Calendar. 

Civ. Pro., "12, § 13 ; Civ. Pro., '02 § 13 ; 1916, XXIX, 6S7. 

On a second and each subsequent appeal to the Supreme Court, or when 
an appeal has once been dismissed for defect or irregularity, the cause 
shall be placed upon the Calendar as of the time of filing the first appeal, 
and may be noticed and put on the Calendar for any succeeding term ; 
and whenever, in any action or proceeding in which the State, or any State 
officer, or any Board of State officers, is or are sole plaintiff or defendant, 
an appeal has been, or shall be, brought up from any judgment or order 
for or against him or them, in any Court, such appeal shall have prefer- 
ence in the Supreme Court, and may be moved by either party out of the 
order on the Calendar. 

Civ. Pro., '12, § 13; Civ. Pro., '02, § 13; 1870, XIV, 314. 

Ex varte Eason, 35 S. C. 602, 15 S. E. 800. 

SuPEEME Court to Order Time Allotted to Hearing of Causes from 
Each Circuit. — The Supreme Court shall on or before the last day of 
any stated term make and file an order designating the order in which the 
causes from the several circuits shall be called at the stated terms of the 
Court next ensuing, which order shall designate the time to be allotted to 
the hearing of the causes from each circuit. 

Civ. Pro., '12, § 13; Civ. Pro., '02, § 13; 1897, XXII, 488. 

May Call Extra Term, Etc. — If the cases from the several circuits can- 
not be heard in the period allotted as prescribed in the following Section, 
the Court s'hall continue the same to be heard after the regular call of the 
circuits, or may call an extra term for the hearing of the same or continue 
them until the next stated term thereafter. 

Civ. Pro., '12, § 13 ; Civ. Pro., '02, § 13 ; 1896, XXII, 1. 

(29) § 4. Number to Agree to Constitute a Judgment — When Circuit 
Judges to Sit Also. — In all cases decided by the Supreme Court the con- 
currence of three of the Justices shall be necessary for a reversal of the 
judgment below; subject to the provisions hereinafter prescribed. 
Whenever upon the hearing of any cause or question before the 
Supreme Court, in the exercise of its original or appellate jurisdic- 



16 CODE OF CIVIL PROCEDURE 

tion, it shall appear to the Justice thereof, or any three of them, that 
there is involved a question of Constitutional law, or of conflict between 
the Constitution and laws of this State and of the United States, or be- 
tween the duties and obligations of her citizens under the same, upon 
the determination of which the entire Court is not agreed ; or whenever 
the Justices of the said Court, or any two of them, desire it on any cause 
or question so before said Court, the Chief Justice, or in his absence the 
presiding Associate Justice, shall call to the assistance of the Supreme 
Court all the Judges of the Circuit Court : Provided, That when the mat- 
ter to be submitted is involved in an appeal from the Circuit Court the 
Circuit Judge who tried the case shall not sit. A majority of the Justices 
of the Supreme Court and Circuit Judges shall constitute a quorum. The 
decision of the Court so constituted, or a majority of the Justices and 
Judges sitting, shall be final and conclusive. In such case the Chief Jus- 
tice, or in his absence the presiding Associate Justice, shall preside. When- 
ever the Justices of the Supreme' Court and the Judges of the Circuit Court 
meet together for the purposes aforesaid, if the number thereof qualified 
to sit constitute an even number, then one of the Circuit Judges must re- 
tire, and the Circuit Judges present shall determine by lot which of their 
number shall retire. Whenever the Circuit Judges are called to sit with 
the Justices of the Supreme Court for the determination of any cause or 
causes, the actual traveling and other expenses of each Judge so attending 
shall be paid by the Governor out of his civil contingent fund upon an 
■itemized statement made out and certified to by each Judge. 
Civ. Pro., '12, § 14; Civ. Pro., '02, § 14; 1870, XIV, 314. 

The Supreme Court cannot modify or set aside a judgment on the Court en hanc. Effect of 
such judgment. State v. Adams, 83 S. C. 150, 65 S. E. 220. 

(30) § 5. Sheriffs to Provide Rooms, Etc. — If, at any term of the Su- 
preme Court, proper and convenient room, both for the consultation of 
the Judges and the holding of the Court, with furniture, attendants, fuel, 
lights and stationery, suitable and sufficient for the transaction of its 
business, be not provided for in the place where by law the Court may 
be held, the Court may order the Sheriff of the county to make such pro- 
vision, and the expenses incurred by him in carrying the order into effect 
shall be paid from the State Treasury. 

Civ. Pro., '12, § 15 ; Civ. Pro., '02, § 15 ; 1870, XIV, 495. 

(31) § 6. Courts — Where Held — Adjournment. — The Supreme Court 
may be held in other buildings than those designated by law as places for 
holding Courts, and at a different place, at the same city or town, from 
that at which it is appointed to be held. Any one or more of the Judges 
may adjourn the Court with the like effect as if all were present. 

Civ. Pro., '32, § nC; Civ. Pro., '02, § 16; 1870, XIV, 314. 



OF SOUTH CAROLINA 17 

CHAPTER II. 

Circuit Courts and Judges : Circuits and Terms of Courts. 



Article 1. Circuit Courts and Judges, 17. 
Article 2. Circuits and Terms of Courts, 22. 



ARTICLE I. 

Circuit Courts And Judges. 

(32) § 1. To Be Always Open for Certain Purposes. — The Cir- 
cuit Courts shall be deemed always open, for the purpose of issuing and 
returning mesne and final process and commissions, and for making and 
directing all interlocutory motions, orders, rules and other proceedings 
whatever, preparatory to the hearing of all causes pending therein upon 
their merits; and it shall be competent for any Judge of the said Courts, 
upon reasonable notice to the parties, in the Clerk's office or at chambers, 
and in vacation as well as in term, to make, direct, and award, all such 
process, commissions, and interlocutory orders, rules, and other proceed- 
ings, whenever the same are not grantable of course, according to the rules 
and practice of the Court. 

Civ. '12, § 3830-, Civ. '02, § 2733; G. S. 2112; R. S. 2244; 1868, XIV, 136. 

Order allowing supplemental complaint may be granted at chambers. Edward& v. Edwards, 14 
S. 0. 11. And order amending complaint. Ellen v. Ellen 26 S. C. 99, 1 S. E. 413. Attachment 
may be dissolved at chambers. Cureton v. Darby, 12 S. C. 125.. Judge may vacate warrant of 
seizure under agricultural lien at chambers. Segler v. Coward, 24 S. 0. 122. But not after 
defendant has elected his remedy given him by the Statute and the issues are made up and 
referred to the Master. Garlington v. Gilliam, 31 S. C. 333, 9 S. E. 1037. Judge has no 
power to vacate judgment as erroneous at chambers. Clawson v. Hutchinson, 14 S. C. 517; 
Coleman v. Keels, 30 S. C. 614, 9 S. E. 270. Order of Judge, directing on appeal, the County 
Commissioners to audit a claim, made out of Court and without notice, is invalid. In re 
Conant, 24 S. C. 362. Judge cannot grant perpetual injunction at chambers against consent 
of party. Hornsby v. Burdell, 9 S. C. 303. 

Contempt proceedings. Battle v. Lumber Co., 72 S. C. 322, 51 S. E. 873; Kirvin v. Scar- 
borough, 70 S. C. 288, 49 S. E. 860. Writs of assistance may be granted at chambers. 
Murchison v. Miller, 64 S. C. 425, 42 S. E. 177; Ex parte Quails, 71 S. C. 87, 50 S. E. 646; 
Dixon V. Floyd, 73 S. C. 202, 53 S. E. 167. Making new parties at chambers. Hellams v. 
Prior, 64 S. C. 543, 43 S. E. 25. Cannot alter decree out of term time, in another Circuit 
or on ex ijarte application. Williams v. Ulmer, 73 S. C. 579, 53 S. E. 999. Order for alimony at 
chambers. Messervy v. Messervv, 79 S. C. 58, 60 S. E. 692. Order of discontinuance 
granted at chambers. Shelton v. Southern Ry., 80 S. C. 79, 61 S. E. 220. 

Judge at chambers has power without consent to refer issues involving examination of long 
account. Montague v. Best, 65 S. C. 455, 43 S. E. 963. 

(33) § 2. May Grant New Trials — Rules. — Circuit Courts shall have 
power to grant new trials in cases where there has been a trial by jury 
for reasons for which new trials have usually been granted in the Courts 
of law of this State; and they shall have power to administer all necessary 
oaths or affirmations, and punish, by fine or imprisonment, at the discre- 
tion of said Courts, all contempts of authority in any cause or hearing 
before the same, and to make and establish all necessary rules for the or- 
derly conducting of business in said Courts : Provided, Such rules are not 
repugnant to the laws of the State or the rules prescribed by the Justices 
of the Supreme Court and Circuit Judges. 

Civ. '12, § 3831 ; Civ. '02, § 2734 ; G. S. 2113 ; R. S. 224.5 ; 1868, XIV, 136. 

To be liberally construed as to granting new trials. Elmore v. Scurry, 1 S. C. 139. No 
time prescribed to move therefor. Sams v. Hoover, 33 S. C. 401, 12 S. E. 8. Error in amount 
of verdict should be corrected by new trial. Wilson v. R. R., 16 S. C. 592; Levi v. Legg, 23 S. _C. 
282. New trial is the remedy where there is variance between the testimony and the material 
allegation of the indictment. State v. Hamilton, 17 S. C. 462. New trial should be granted 
when the jury disregard the Judge's charge. Dent v. Bryce, 16 S. C. 14; Thompson v. Lee, 
19 S. C. 489. Judge's conclusion as to new trial, when founded on the facts at trial, 

3 C C P 



18 CODE OF CIVIL PROCEDURE 

is final. Brickman i:. R. R., 8 S. C. 173; Steele v. R. R., 11 S. C. 589; "Warren v. Lagrone 
12 S. C. 45: Steele v. R. R., 14 S. C. 324; Wood v. R. R., 19 S. C. 579; Lanier v. ToUeson 
20 S. C. 56; Blakely v. Frazier, 20 S. C. 144; Finch v. Finch, 21 S. C. 342: Hyrne v. Erwin 23 
S. C. 226; State v. Tarrant, 24 S. C. 593; "Wright v. C. & "W. C. Ry. Co., 59 S C 268- 
McGee v. "Wells, 57 S. C. 280, 35 S. E. 532. But not when founded on error of law 
State V. David, 14 S. C. 428; "Wood v. R. R., 19 S. C. 579. Judge has discretionary power 
to grant new trial on after-discovered testimony. State v. David, 14 S. C. 428 ; Tarrant v 
Gilletson, 14 S. C. 620; State v. Workman, 15 S. C. 540; Durant v. Philpot, 16 S. 116 •' 
Waring v. R. R., 16 S. C. 416; Sams v. Hoover, 33 S. C. 401, 12 S. E. 8. In suits in equity 
as well as in actions at law. Durant v. Philpot, 16 S. C. 116 ; Covington v. Covington 
47 S. C. 263, 25 S. E. 193. Misconduct of jurors as ground for. Watts v. S. B. R. R. Co., 
60 S. C. 67, 38 S. E. 240; Pulaski v. Wiard, 2 Rich. 122; McCarty v. McCarty, 4 Rich 598- 
Lott V. Mason, 2 Strob. 183; State v. Senn, 32 S. C. 392, 11 S. E. 296; State v. Wav, 38 S C 
333, 17 S. E. 39; State v. Nance, 25 S. C. 172. New trial, nisi, for excessive verdict 
Stuckey v. A. C. L. Ry. Co., 57 S. C. 395, 35 S. E. 550. Circuit Court has no power to 
grant new trials, except in cases tried by jury. Meetze v. R. R., 23 S. C. 1. Judge 
cannot grant at chambers. State v. Chavis, 34 S. C. 132, 13 S. E. 317; Bank v. Mellett, 44 
S. C. 383, 22 S. E. 444; Donly v. Fort, 42 S. C. 200, 20 S. E. 51. As to punishment for 
contempt. Gibson v. Gibson, 7 S. C. 356. 

New trial for inadequacy of damages. Bodie v. C. & W. C. Ry!, 66 S. C. 302, 44 S. E. 943. 

Discretion — new trial. State v. Hayes, 69 S. C. 295, 48 S. E. 251. Not compelled 
to grant new trial where Judge would have found a smaller verdict if on the jury. "Wil- 
liams V. Tolbert. 76 S. C. 211, 56 S. E. 908; Entzminger v. Ry., 79 S. C. 151, 60 S. " E. 441. 
Grounds for review. Reed v. Ry., 75 S. C. 162, 55 S. E. 218; Trimmier v. A. C. L. Ry. Co., 81 
S. C. 213, 62 S. E. 209. 

After-discovered evidence. Wardlaw v. Oil Mill, 74 S. C. 368, 54 S. E. 658, 114 Am. St. Rep. 
1004; State v. Johnson, 74 S. C. 401, 54 S. E. 601. 

Where no evidence to support verdict, order appealable. Sutton v. Catawba Power Company, 
76 S. C. 320. 56 S. E. 966. 

New trial granted one defendant, sets aside verdict as to both. Barfield v. Coker, 73 S. C. 
181, 53 S. E. 170. Granted as to whole case, where verdict is general. Barfield v. Coker, 
73 S. C. 181. 53 S. E. 170. 

Abandonment of appeal cannot be imposed as a condition for new trial. Hall v. N. W. 
R. R. Co., 81 S. C. 522, 62 S. E. 848. Nor impose any arbitrary condition. Jackson v. 
So. Oil Co., 81 S. C. 564, 62 S. E. 854. 

New trial after appeal in criminal case. State v. Adams, 73 S. C. 435, 53 S. E. 538; State 
V. Lee, 80 S. C. 367, 61 S. E. 657; State v. Turner, 39 S. C. 436. 

New trial on ground of after-discovered evidence may be granted by circuit court while 
appeal is pending in Supreme Court. Mills v. A. C. L. R. R. Co., 82 S. C. 126, 63 S. E. 308. 

Order granting new trial because verdict is against great weight of testimony will not 
be disturbed, unless abuse of discretion is shown. Darlington Oil Co. v. Pee Dee Oil Co., 68 S. C. 
46, 46 S. E. 720. 

(34) § 3. Change of Venue— When and How Made.— The Circuit 
Courts shall have power to change the venue in all cases, civil and crim- 
inal, pending therein, and over which said Courts have original jurisdic- 
tion, by ordering the record to be removed to another county in the same 
circuit. The application for removal must be made to the Judge sitting 
in regular terjn by some party interested, or by the Solicitor of the Circuit 
or accused, supported by affidavit that a fair and impartial trial cannot 
be had in the county where such action or prosecution was commenced. 
The State shall have the same right to make application for a change of 
venue that a defendant has in cases of murder, arson, rape, burglary, per- 
jury, forgery or grand larceny: Provided, No change of venue shall be 
granted in such cases until a true bill has been found by a grand jury. 
Four days notice of such application in civil and criminal cases shall be 
given to the adverse party, and if a change is ordered, it shall be to a 
county in the same Judicial Circuit : Provided, further, That such adverse 
party to whom said notice is given shall have the right to waive the same ; 
and the Circuit Judge shall have the power, upon application made to him 
by either party, upon proper cause shown, to shorten or extend the time 
for the hearing of such application for a change of venue. 

Civ. '12, § 3832 ; Civ. '02, § 2735 ; G. S. 2114 ; R. S. 2246 ; 1870, XIV, 839 ; 1896, 
XXII, 12 ; 1905, XXIV, 845. 

This power is discretionary. Taylor v. Williamson, McM. Eq. 348; State v. Coleman, 8 S. C. 
237: McFail v. Barnwell County, 54 S. C. 368, 32 S. E. 417. But its exercise may sometimes be 
reviewed. Gower v. Thomson, 6 S. C. 313; Parker v. Grimes, 9 S. C. 284; Blakelv v. Frazier, 11 
S. C. 122; Carroll v. C. & S. R. R. Co., 61 S. C. 251, 39 S. E. 364. it can only be 
exercised for^ cause shown. Taylor v. Williamson, McM. Eq. 348; Blakely v. Frazier, 11 S. C. 
122. In criminal case application for removal should be be made after issue joined. State 
V. Addison, 2 S. C. 356. The affidavits should be strong. State v. Williams, 2 McC. 383. 
Affidavits. State v. Sullivan, 39 S. C. 400, 17 S. E. 865. Power exercised at chamberg. 



OF SOUTH CAROLINA ID 

Utsey V. C. S. & N. Ry. Co., 38 S. C. 399, 17 S. E. 141. Time of notice. Willoughby v. 
N. E. Ry. Co., 46 S C. 317, 24 S. E. 308. 

Judge at chambers cannot grant chage of venue on ground that justice would be prompted 
thereby. Castles v. Lancaster County, 74 S. C. 512, 55 S. E. 115. 

Motion to change venue may be made before answer on four days' notice, where wrong 
County is named in complaint. Pishburne i'. Minott, 72 S. C. 572, 52 S. E. 646. 

Act 24 Stat. 845, amending § 2735, Code 1902, being the above Section, relating to 
change of venue, is not violative of § 17, Art. Ill, because its title does not refer to substance 
of amendment — changing time of notice. State v. Hunter, 79 S. C. 91, 60 S. E. 266. 

(35) § 4. Powers of Circuit Judg'e at Chambers. — The Jiidg^es of the 
Courts of Common Pleas shall have power at Chambers to grant writs 
of prohibition, mandamus and certiorari; to hear and determine 
demurrers and motions to set aside and stay executions; to hear 
and determine actions for partition and foreclosure suits, either 
within or without the county where the land in question lies ; to hear and 
grant all writs and processes in such actions in like manner and with the 
same effect as are now granted in term time ; in default cases, to render 
judgment as in open Court; and to hear any matter not properly triable 
before a jury and to enter final judgment therein in the same manner, 
in every respect, as if the Court were actually sitting: Provided, That 
no Judge shall hear and determine any cause necessitating the presence 
or swearing of witnesses before the Court, and parties, respectively, 
shall have the same right of appeal as if the decision of judgment were 
made in open Court: Provided, further, That ten days' notice of time and 
place of said hearing shall be given to the adverse party or his attorney; 
And provided, further, That no hearing, except with consent, shall be had 
outside the Judicial Circuit of the Judge having jurisdiction: And pro- 
vided, further, That where the service is made by application the ten 
day's notice of application for judgment may be inserted in the first or 
any subsequent publication or mailed at the last known residence of 
the defendant or defendants: And provided, further. That in all other 
eases except by consent, and in partition and foreclosure suits and cases 
where summons is served by publication, the notice of the application for 
judgment shall not be made until after the time for answering or mak- 
ing return has expired. 

Civ. '12, § 3833; Civ. '02, § 2736; G. S. 2115; R. S. 2247; 1818, YII, 821; 1882, 
XVIII, 38; 1887, XIX, 813; 1891, XX, 1123; 1899, XXIII, 30; 1908, XXV, 1055; 
1920, XXXI, 806: 1921, XXXII, 281. 

May grant suit money and alimony pendente lite at chambers. Smith v. Smith, 51 S. C. 379, 29 
S. E. 227. Application for writ of mandamus cannot be heard outside of circuit. State 
ex rel. Lamotte v. Smith, 50 S. C. 558, 27 S. E. 933. May authorize issuance of receiver's 
certificates. State v. P. R. & A. Ry. Co., 45 S. C. 413, 23 S. E. 363. As to limit of power 
in granting prohibition. State v. Stackhouse, 14 S. C. 417; State v. Columbia, 17 S. C. 80. 
As to mandamus. State v. R. R., 16 S. C. 524. As to certiorari. Canady v. Black, 34 S. C. 194, 
13 S. E. 361. As to executions. Duncan v. Brown, 15 S. C. 414; Wolf v. R. R., 25 S. C. 379; 
Crocker v. Allen, 34 S. C. 452, 13 S. E. 650. Without consent, Judge cannot so determine 
an action. Hornesby v. Burdell, 9 S. C. 303. Such power in case of partition and fore- 
closure prior to the amendment of the statute could only be exercised by the Judge 
while in county where the land lies. Woodward v. Elliott, 27 S. C. 368, 3 S. E. 477; Kaminsky 
V. Trantham, 45 S. C. 8, 22 S. E. 746. Judgment cannot be vacated at chambers. Bank v. 
Mellett, 44 S. C. 383, 22 S. E. 444; Turner v. Foreman, 47 S. C. 31, 24 S. E. 989. Nor 
can a judgment be rendered at chambers. Badman v. Brabham, 54 S, 0. 400, 32 S. E. 444. 

Cannot hear m.andamus out of county. Kirven v. Scarborough, 70 S. C. 288, 49 S. E. 860. 

Prohibition not remedy to prevent illegal taking' of land by city. Riley v. Greenwood, 
72 S. C. 90, 51 S. E. 532, 110 Am. St. Rep. 592; Gibbes v. Kirkland, 41 S. C. 29, 19 S. E. 215. 

Consent to jurisdiction at chambers need not be in writing. Pearson, ex parte, 79 S. C. 
302, 60 S. E. 706. 

Order of discontinuance at chambers. Shelton v. So. Ry., 80 S. C. 74, 61 S. E. 220. 

Consent by guardian irregularly appointed. Middleton v. Stokes, 71 S. 0. 17, 50 S. E. 539. 

Consent, by request to hear proceedings in contempt at chambers gives jurisdiction. Smith 
V. Smith, 77 S. C. 67, 57 S. E. 666. Consent of mortgagor cannot confer jurisdiction on 
court in another countrv than that in which land is located to render decree of foreclosure, 
Silcox & Co. V. Jones, 80 S. C. 484, 61 S. E. 948. But jurisdiction of person may be given 
by consent. Ibid. McGrath-t;, Ins. Co., 74 S. C. 69, 54 S. E. 218; Messervy v. Messervy, 80 
S. C. 277. 61 S. E. 442. 



20 CODE OF CIVIL PROCEDURE 

(36) § 5. Powers of Judges Holding Courts in Other Circuits. — Every 
Judge, while holding the Circuit Court for any Circuit pursuant to the 
provisions of the law of this State, shall be invested with powers equal to 
those of the Judge of such Circuit, and may hear and determine all causes 
and motions and grant all orders in open Court or at chambers which it 
is competent for the Judge residing in such Circuit to hear, determine, or 
grant, any law, usage, or custom to the contrary notwithstanding. 

Civ. '12, § 3834 ; Civ. '02, § 2737 ; G. S. 211G ; R. S. 2248 ; 1878, XVI, 395. 

Non-resident Judge may make order at chamber requiring juries to be drawn, while presiding 
in circuit. State v. Powers, 59 S. C. 200, 37 S. E. 690. But when specially assigned for a 
special term of Court can transact no other business than that on the calendars. Simms v. 
Phillips, 46 S. C. 149, 24 S. E. 97. A Judge has no authority beyond his own Circuit except 
that conferred by the Statute. Ex parte Parker, 6 S. C. 476. He may determine a cause 
heard by him in one Circuit after he has entered upon the duties of another. Chafee v. 
RaineT, 21 S. C. 17. 

Order discontinuance at chambers. Shelton v. Ry., 80 S. C. 74, 61 S. E. 220. Judge 
loses jurisdiction where he leaves circuit over matter not then finally submitted to him. 
Whilden v. Chapman, 80 S. C. 84, 61 S. E. 249. 

(37) § 6. To Discharge All Duties on Circuits. — Every Circuit Judge 
in this State shall at all times have jurisdiction to discharge and perform 
all the duties of his office within the Circuit wherein he resides, except the 
holding of Circuits Courts therein when some other Circuit Judge shall 
be engaged in holding said Courts. 

Civ. '12, § 3835 ; Civ. '02, § 2738 ; G. S. 2117 ; R. S. 2249 ; 1878, XVI, 395. 

Shelton r. Southern Railway, 80 S. C. 74, 76 61, S. E. 220. 

He cannot hear and determine at chambers in another Circuit on application for writ 
of mandamus in a case arising within his own Circuit. Lamotte v. Smith, 50 S. C. 558, 
27 S. E. 933. His signing an order of bail outside of his Circuit for a prisoner of his 
Circuit does not show that he heard the application beyond his Circuit. State v. Satterwhite, 
20 S. C. 536. 

Circuit Judges are confined, in the performance of their judicial duties, to the Circuits to 
which thev are respectively elected, except when authorized bv statute to go bevond that limit. 
Const., Art. IV, §§ 13-14;' Ba; parte Parker, 6 S. C. 472; State v. Parker, 7 S. C. 235. 

(38) § 7. Cannot Absent Themselves from State Without Permission. 

— No Circuit Judge shall absent himself from this State without leave first 
granted in writing by the Chief Justice or presiding Associate Justice. 
Civ. '12, § 3836 ; Civ. '02, § 2739 ; G. S. 2119 ; R. S. 2250 ; 1877, XVI, 229 

(39) § 8. Salaries of Circuit Judges. — Each Circuit Judge holding 
office prior to the first day of March, 1919, shall receive an annual salary of 
three thousand dollars, and the additional sum of one thousand dollars for 
expenses : Provided, however, That the provisions as to expenses shall cease 
and determine upon the election of their respective successors. 

Their successors in office shall each receive an annual salary of four 
thousand dollars. 

Civ. '12, § 3837; Civ. '02, § 2740; G. S. 2120; R. S. 2351; 1893, XXI, 417; 1919, 

XXXI, 101. 

Under Salary Reduction Act of 1893, and Appropriation Act of same year, former took effect 
on November 1, 1894, and Circuit Judge elected in December, 1894, is only entitled to salary 
as reduced by Act of 1893. Buchanan v. State Treasurer, 68 S. C. 411, 47 S. E. 683. 

(40) § 9. Amenable for Neglect of Duty as to Holding Terms, etc., 
Proceedings. — If any Circuit Judge shall fail or neglect to hold the term 
or terms of any Court of General Sessions or Common Pleas in any Circuit 
to which he may be assigned until the business of said Courts shall have 
been disposed of, or the end of the term, or terms, arrives, or shall fail to 
recognize and obey the order of assignment of the Chief Justice or pre- 
siding Associate Justice, or shall violate any provisions of this Chapter, 
the Attorney General of the State shall, upon any reliable information of 



OF SOUTH CAROLINA 21 

the same, by official communication, bring such violations of this Chapter 
to the notice of the General Assembly at its first session, and such Circuit 
Judge shall be held amenable to proceedings for neglect of duty, as pro- 
vided in the Constitution. 

Civ. '12, § 3838; Civ. '02, § 2741; G. S. 2124; R. S. 2255; 1877, XVI, 229. 

(41) § 10. Circuit Judges to Notify Chief Justice of Inability or Dis- 
ability to Hold Court. — It shall be the duty of each Circuit Judge, when 
disabled by sickness or other cause to hold any Court to which he may be 
assigned, to give, or cause to be given, prompt notice of such inability or 
disability to the Chief Justice, so that his place may be temporarily filled 
and the Court held according to law. 

Civ. '12, § 3839 ; Civ. '02, § 2742 ; R. S. 2256 ; 1892, XXI, 4. 

(42) § 11. Provision Where Judge Is Unable to Hold Court. — When- 
ever any Circuit Judge, pending his assignment to hold the Courts of any 
Circuit, shall die, resign, be disabled by illness or be absent from the State, 
or in case of a vacancy in the office of Circuit Judge of any Circuit, or in 
case the Chief Justice or presiding Associate Justice of the Supreme Court 
shall order a special Court of Common Pleas and General Sessions, or 
Common Pleas, or General Sessions, in any county in this State, upon a 
satisfactory showing that such special Court is needed, the Chief Justice 
or presiding Associate Justice may assign any other Circuit Judge dis- 
engaged to hold the Courts of such Circuits, or to fill any appointment 
made necessary by such vacancy, or to hold such special Court ; and in the 
event that there be no other Circuit Judge disengaged, then the Gov- 
ernor, upon the recommendation of the Supreme Court, or the Chief Jus- 
tice thereof if the Supreme court be not in session, shall immediately com- 
mission as special Judge such persons learned in the law as shall be recom- 
mended to hold the Courts of such Circuit or to hold such special Court for 
that term only. And any special Judge so appointed shall receive as com- 
pensation for his services the salary prescribed in Section 45. "Whenever 
the time fixed for holding any of the Courts of General Sessions or Com- 
mon Pleas in this State should be found to be not sufficient for the trial of 
all cases before said Court, a like assignment of a disengaged Circuit Judge 
or commission of a special Judge may be made to hold the Court to which 
the Judge then holding such overcrowded Court may have been in due 
course next assigned, and the term of such overcrowded Court shall pro- 
ceed until the cases before it are disposed of. 

Civ. '12, § 3840 ; Civ. '02, § 2743 ; G. S. 2123 ; R. S. 2254 ; 1896, XXII. 11. 
Authority of Governor to appoint Judge to hold extra term. State v. Davis, 88 S. C. 204. 

(43) § 12. How Juries for Special Court Are Drawn and Summoned. 

— When notified of such appointment, the Clerk of the said Court shall 
notify the proper authorities, and the Grand Jury shall be summoned to 
attend, if it be a Court of Sessions, and a petit jury shall be drawn and 
summoned, if jury cases are to be tried, in the regular manner, for the 
purpose of said Court, and as the same may be necessary, and the Clerk 



22 CODE OF CIVIL PROCEDURE 

shall notify said Special Judge of the time fixed for holding said special 
term of Court. 

Civ. '12, § 3842 ; Civ. '02, § 2745 ; 1900, XXIII, 329. 

State V. Gallman, 79 S. C. 229, 60 S. E. 682. 

It is not necessary that formal notice of special term called by Governor be published by 
Clerk over his signature. State v. Davis, 88 S. C. 204. 

(44) § 13. What Business May Be Transacted at Special Court. — If a 

special term of the Court of General Sessions only is ordered, after dis- 
posing of the sessions business, the said Judge may also open the Court of 
Common Pleas for the transaction of any business which the parties or 
their attorneys may consent to be disposed of by him. 
Civ. '12, § 3843; Civ. '02, § 2746; 1900, XXIII, 329. 

(45) § 14. Salary of Special Judge. — The said Special Judge shall be 
allowed for his services ten dollars per day and his necessary expenses, and 
the same per diem for not exceeding five days for the preparation of his 
decrees. 

Civ. '12, § 3844; Civ. '02, § 2747; 1900, XXIII, 329. 

(46) § 15. When Stenographer for Special Term of Court May Be 
Appointed. — It shall be lawful for the Presiding Judge at aijy special 
term of the Circuit Court, where the official Stenographer is performing 
the duties of his office at a Court then being held in some other county of 
the Circuit to appoint a Stenographer for said term of the Court, who 
shall perform the duties of the office of Court Stenographer for said term 
of Court. 

Civ. '12, § 3845 ; Civ. '02, § 2748 ; 1900, XXIII, 329. 

(47) § 16. Compensation of Stenographer Appointed for Special Term 
of Court. — The Stenographer appointed under the provision of the fore- 
going Section shall receive the same compensation as that allowed by law 
to the official Stenographer in proportion to the time of service, to be paid 
out of the County Treasury, upon the warrant of the Clerk of the Court, 
approved by the Presiding Judge, and also the usual fees for copies of 
testimony and reports of Court proceedings, to be paid by the parties or- 
dering the same. 

Civ. '12, § 3846; Civ. '02, § 2749; 1900, XXIII, 329. 



ARTICLE II. 

Circuits And Terms of Courts. 

(48) § 1. State Divided Into Fourteen Circuits. — The State is 
divided into fourteen Judicial Circuits as follows: 

The First Circuit shall be composed of the Counties of Berkeley, Cal- 
houn, Dorchester and Orangeburg. 

The Second Circuit shall be composed of the Counties of Aiken, Allen- 
dale, Bamberg and Barnwell. 

The Third Circuit shall be composed of the Counties of Clarendon, Lee, 
Sumter and Williamsburg. 



OF SOUTH CAROLINA 23 

The Fourth Circuit shall be composed of the Counties of Chesterfield, 
Darlington, Marlboro and Dillon, 

The Fifth Circuit shall be composed of the Counties of Kershaw and 
Richland. 

The Sixth Circuit shall be composed of the Counties of York, Chester, 
Lancaster and Fairfield. 

The Seventh Circuit shall be composed of the Counties of Cherokee, 
Spartanburg and Union. 

The Eighth Circuit shall be composed of the Counties of Abbeville, 
Greenwood, Laurens and Newberry. 

The Ninth Circuit shall be composed of the County of Charleston. 

The Tenth Circuit shall be composed of the Counties of Anderson and 
Oconee. 

The Eleventh Circuit shall be composed of the Counties of Lexington, 
McCormick, Saluda and Edgefield. 

The Twelfth Circuit shall be composed of the Counties of Florence, 
Georgetown, Horry and Marion. 

The Thirteenth Circuit shall be composed of the Counties of Greenville 
and Pickens. 

The Fourteenth Circuit shall be composed of the Counties of Hampton, 
Colleton, Jasper and Beaufort. 

Civ. Pro., '12, § 17 ; Civ. Pro., '02, § 17 ; 1912, XXVII, 827 ; 1914, XXVIII, 579, 636 ; 
1916, XXIX, 688, 717; 1919, XXXI, 5; 1870, XIV, § 17; 1868, XIV, 5, 72; 1869, 
XIV, 198; 1872, XV, 146; 1878, XVI, 376; 1871, XIV, 659, § 2; 1882, XVII, 682; 1889, 
XX, 518 ; 1871, XIV, 696, § 6 ; 1897, XXII, 583, § 10 and 597, § 5 ; 1897, XXII, 502. 
§ 7; 1897, XXII, 609, § 11; Con., 1895, page 96 and 1896, XXII, 250, § 6; 1899, 
XXIII, 31, § 5; 1898, XXII, 879; 1899, XXIII, 179, § 4; 1908, XXV, 1002, 1283; 1910, 
XXVI, 867. 

(49) § 2. CoTirts in First Circuit. — The Courts in the First Circuit 
shall be held as follows : 

(1) Berkeley County. — The Court of General Sessions for the County of 
Berkeley shall be held at Moncks Corner the first Monday in March and 
the first Monday in November. The Court of Common Pleas for the said 
county shall be held at Moncks Corner on the first Monday of April, two 
weeks; third Monday in June, without jury; first Monday in September. 

(2) CalJioun County. — The Court of General Sessions for Calhoun 
County shall be held at St. Matthews as follows: On the Fourth Monday 
in May ; third Monday in November ; and the Court of Common Pleas for 
the said county shall be held at St. Matthews on the fourth Monday in 
April; the second Monday in September, without jury, and the fourth 
Monday in November. 

(3) Dorchester County. — The Court of General Sessions for Dorchester 
County shall be held at St. George on the second Monday in March; third 
Monday in October. The Court of Common Pleas for the said county 
shall be held at St. George on the Tuesdaj^s succeeding the Mondays here- 
tofore fixed for the holding of the Court of General Sessions, and also a 
Court of Common Pleas at the said place on the second Monday in July, 
without- juries. 



24 CODE OF CIVIL PROCEDURE 

(4) Orangeburg County. — The Court of General Sessions for the County 
of Orangeburg shall be held at Orangeburg the second Monday in January, 
two weeks; first Monday in May, two weeks; third Monday in September, 
two weeks. The Court of Common Pleas for the County of Orangeburg 
shall be held at Orangeburg on the third Monday in March ; third Monday 
of April ; first Monday of June, and the first Monday of October. 

Civ. Pro., '12, § IS; Civ. Pro., '02, § 18; 1886, XIX, 473; 1898, XXII, 684; lUOl, 
XXIII, 624; 1908, XXV, 1010; 1909, XXVI, 230; 1911, XXVII, 88; 1912, XXVII, 
771, 772; 1913, XXVIII, 117; 1915, XXIX, 387, 547; 1916, XXIX, 690; 1917, XXX, 
145; 1919, XXXI. 238; 1921, XXXII, 56. 

(5) At the terms of the Court of General Sessions provided for in Sub- 
divisions 1, 2, 3, and 4, the Court of Common Pleas shall be open for the 
taking of any verdict or judgment by default or consent and for the 
transaction of equity business when the same does not conflict with the 
business of the Court of General Sessions. 

1919, XXXI, 238. 

(50) § 3. Courts in Second Circuit. — The Courts of the Second Cir- 
cuit shall be held as follows : 

(1) Aiken County. — The Court of General Sessions for the County of 
Aiken shall be held at Aiken on the second Monday in January, two weeks ; 
the first Monday in May, two weeks ; and the fourth Monday in September, 
two weeks. The Court of Common Pleas of the said county shall be held 
at Aiken on the third Monday in March, three weeks ; on the second Mon- 
day in June, one week; and on the second Monday in November, three 
weeks. 

(2) Allendale County. — The Court of Common Pleas for Allendale 
County shall be held at Allendale on the first Monday in February, one 
week; and the Court of General Sessions and Common Pleas shall be held 
at Allendale on the second Monday in February, one week; third Monday 
in June, one week ; and the second Monday in September, two weeks : 
Provided, That the Court of General Sessions for said county shall be 
opened on Monday as above stated and that the Court of Common Pleas 
shall commence at the end of the Court of General Sessions. 

(3) Bamherg County. — The Court of General Sessions for Bamberg 
County shall be held at Bamberg on the fourth Monday in January, one 
week ; on the first Monday in September, one week. The Court of Common 
Pleas for said County shall be held at Bamberg on the first Monday in 
March, two weeks ; second Monday in July, one week ; and the fourth Mon- 
day in October, two weeks : Provided, That at the July term of the Court 
of Common Pleas for said county no jury trial shall be had, and the 
Court of General Sessions shall be open for the purpose of receiving pleas, 
and the Grand Jury of said county shall be called together at the said 
term of Court for the purpose of passing on all bills submitted by the So- 
licitor. 

(4) Barnwell County. — The Court of General Sessions for Barnwell 
County shall be held at Barnwell on the third Monday in February, two 
weeks ; fourth Monday in May, two weeks ; and the second Monday in Oc- 



OF SOUTH CAROLINA 25 

tober, two weeks. The Court of Common Pleas for the said county shall 
be lield at Barnwell on the second Monday in April, three weeks; on the 
fourth Monday in June, two weeks ; on the first Monday in December, three 
weeks : Provided, That in Barnwell County the petit jury drawn for 
service for the first week of each term of the Court of General Sessions 
shall not be summoned to attend upon the Court nntil the second day of 
the term, and the first day of each term of the said Court shall be devoted 
to the receiving by such Court of pleas of guilty, the handing out of indict- 
ments to, and the return of bills by, the Grand Jury; to the argument of 
motions, including motions for continuances, relating to cases pending 
before the said Court ; and to such other business of said Court as may be 
transacted without a petit jury: Provided, further, That nothing herein 
contained shall be construed to prevent the making or hearing, after the 
first day of the term, of motions for new trials, or such motions as could 
not have been made, by the exercise of reasonable diligence on the part of 
the attorneys employed in the cases in question, on the first day of the 
term : Provided, further. That the petit jurors drawn for service for the 
first week of each term of the Court of Common Pleas of Barnwell County 
shall not be summoned to attend upon the said Court until the second day 
of each term, and the first day of each term of said Court shall be known 
as "Rule and Motion Day," and shall be devoted to the making of returns 
to rules; to the argument of motions, including motions for continuances, 
relating to cases set for trial at said term ; and to such other business as may 
be transacted by the Court without a petit jury: Provided, further. That 
nothing herein contained shall be construed to prevent the making or hear- 
ing after the first day of the term of said Court, of motions for new trials, 
or such motions as could not have been made by the exercise of reasonable 
diligence on the part of the attorneys employed in the cases in question, on 
the first day of such term. 

Civ. Pro., '12, § 19 ; Civ. Pro., '02, § 19 ; 1897, XXII, 444 ; 1910, XXVI, 542 ; 1911, 
XXVII, 87; 1912, XXVII, 770; 1914, XXVIII, 607; 1915, XXIX, 198; 1916, XXIX. 
691, 699 ; 1917, XXX, 135 ; 1919, XXXI, 43 ; 1920, XXXI, 855. 

(5) At the terms of the Court of General Sessions provided for in Sub- 
divisions 1, 2, 3 and 4, the Court of Common Pleas shall be open for the 
taking of any verdict or judgment by default or consent, and for the trans- 
action of equity business, when the same does not conflict with the business 
of the Court of General Sessions. 

1920, XXXI, 855. 

(51) § 4. Courts in Third Circuit.— The Courts of the Third Circuit 
shall be held as follows : 

(1) Clarendon County. — The Court of General Sessions at Manning for 
the County of Clarendon on the fourth Monday after the second Monday 
in February, the second Monday after the second Monday in June, and the 
first Monday after the third Monday in September ; and the Court of Com- 
mon Pleas at the same place on the Wednesdays first succeeding the Mon- 
days herein fixed for holding Court of General Sessions at the same place : 
Provided, That no peremptory call of Calendar No. 1 shall be made in said 



26 CODE OF CIVIL PEOCEDURE 

County of Clarendon at the fall term of Common Pleas before the •Monday- 
succeeding the Wednesday herein fixed for the opening of said Court. 

(2) Lee County. — The Court of General Sessions at Bishopville, for the 
County of Lee, on the third Monday after the second Monday in February, 
on the first Monday after the second Monday in June, on the third Mon- 
day in September, and the Court of Common Pleas at the 'same place on 
the ninth Monday after the second Monday in February, the Wednesday 
first succeeding the first Monday after the second Monday in June, and the 
sixth Monday after the third Monday in September: Provided, That no 
jury trial of civil cases shall be had at the summer term except by consent. 

(3) Sumter County. — The Court of General Sessions at Sumter for the 
County of Sumter on the second Monday in February, on the fourth Mon- 
day after the second Monday in June, and the third Monday after the third 
Monday in September : Provided, That the Court of General Sessions pro- 
vided to convene on the fourth Monday after the second Monday in June 
for Sumter County may continue its session until the business thereof 
may be disposed of ; and the Court of Common Pleas at the same place on 
the sixth Monday after the second Monday in February, on the fifth Mon- 
day after the second Monday in June, and on the eighth Monday after 
the third Monday in September, 

(4) Williamsburg County. — The Court of General Sessions at Kings- 
tree, for the County of Williamsburg, on the second Monday after the sec- 
ond Monday in February, the second Monday in June, and the fifth Mon- 
day after the third Monday in September; the Court of Common Pleas 
at the same place on the eleventh Monday after the second Monday in Feb- 
ruary, on the Wednesday first succeeding the second Monday in June, and 
on the eleventh Monday after the third Monday in September : Provided, 
That no jury trial of civil cases shall be had at the summer term except by 
consent. The petit juries for the first and third terms of the Court of 
General Sessions shall not be required to attend the first and third terms of 
the Court of Common Pleas, but separate juries shall be drawn and sum- 
moned for said Courts. 

Civ. Pro., '12, § 20; Civ. Pro., '02, § 20; 1884, XVIII, 886, 1896, XXII, 22; 1900. 
XXIII, 311; 1902, XXIII, 1194; 1910, XXVI, 541; 1914, XXVIII, 531; 1916, XXIX, 
698. 

(5) Separate Juries for General Sessions and Common Pleas. — Sepa- 
rate juries are to be drawn for the Court of General Sessions and the Courts 
of Common Pleas for all terms for Sumter County and for the first and third 
terms for Lee and Williamsburg Counties. 

(6.) Opening Court of Common Pleas. — Should the business of the 
Court of General Sessions for any of said counties, at any term, be com- 
pleted or suspended before the time fixed by law for the opening of the 
Court of Common Pleas, the Presiding Judge shall open the Court of Com- 
mon Pleas for said county, for the trial of all cases and the transaction of 
all business pending therein, except the trial of jury cases, which may be 
tried at such time only by the consent of the parties or their attorneys. The 
Courts of Common Pleas in said counties shall be open at all terms of the 



OF SOUTH CAROIilNA 27 

Courts of General Sessions for the purpose of rendering judgments by 
default and by the consent of the parties, or their attorneys, for the trial 
of such equity cases as may be ready for hearing, for granting orders of 
reference, and other orders of course, and for the purpose of transacting 
all other business of a regular term of the Court of Common Pleas, except 
trial by jury. 

Civ. Pro., '12, § 20; 1916, XXIX, 693. 

(52) § 5. Courts in Fourth Circuit. — The Courts of the Fourth Circuit 
shall be held as follows, to wit : 

1. General Sessions for Dillon County. — The Court of General Ses- 
sions at Dillon, for the County of Dillon, on the Monday before the last 
Monday in February, the second Monday in June, and the second Monday 
in September. 

2. General Sessions for Darlington County. — Court of General Ses- 
sions at Darlington, for the County of Darlington, on the last Monday in 
February, the third Monday in June, and the third Monday in September. 

3. General Sessions for Chesterfield County. — The Court of General 
Sessions at Chesterfield, for the County of Chesterfield, on the first Mon- 
day after the last Monday in February, the fourth Monday in June, and 
the fourth Monday in September. 

4. General Sessions for Marlboro County. — The Court of General 
Sessions at Bennetts ville, for the County of Marlboro, on the second Mon- 
day after the last Monday in February, the first Monday after the fourth 
Monday in June, and the first Monday after the fourth Monday in Septem- 
ber. 

The Courts of Common Pleas for the Fourth Circuit shall be held as 
follows, to wit: 

1. Common Pleas for Dillon County. — The Court of Common Pleas 
at Dillon, for the County of Dillon, on the third Monday after the last 
Monday in February and on the second Monday after the fourth Monday 
in June, and the second Monday after the fourth Monday in September. 

2. Common Pleas for Darlington County. — The Court of Common 
Pleas at Darlington, for the County of Darlington, on the fifth Monday 
after the last Monday in February, and on the third Monday after the 
fourth Monday in June, and the sixth Monday after the fourth Monday 
in September. 

3. Common Pleas for Chesterfield County. — The Court of Common 
Pleas at Chesterfield, for the County of Chesterfield, on the seventh Mon- 
day after the last Monday in February, on the fourth Monday after the 
fourth Monday in June, and the tenth Monday after the fourth Monday in 
September. 

1920, XXVI, 866. 

4. Common Pleas for Marlboro County. — The Court of Common Pleas 
at Bennettsville, for the County of Marlboro, on the ninth Monday after 



28 CODE OF CIVIL PROCEDURE 

the last Monday in February, and on the fifth Monday after the fourth 
Monday in June, and the eighth Monday after the fourth Monday in Sep- 
tember. 

Time Pleadings, Etc., Are Returnable. — All the recognizances, plead- 
ings, notices and papers, whether dated heretofore or hereafter, shall be 
returnable and applicable to the terms of the Court as fixed by this Section, 
and the Clerk of the Court for each county in this Fourth Judicial Cir- 
cuit shall give two weeks notice of each and every term of the Court in 
some newspaper published in the county, stating the day of the month on 
which the next Court will open for the county. 

Opening Court of Common Pleas. — As to all the Courts of the Fourth 
Judicial Circuit, the Presiding Judge of the Court of General Sessions, 
is hereby authorized to open the Court of Common Pleas, render judg- 
ment by default, and by consent of parties to try (at any time between the 
days on which said Courts of General Sessions open and close) any civil 
action in the same manner and with the same effect as if said action should 
be tried at a regular term of the Court of Common Pleas. 

Civ. Pro., '12, § 21 ; Civ. Pro., '02, § 21 ; 1883, XVIII, 305 ; 1887, XIX, 999 ; 1897, 
XXII, 404; 1901, XXIII, 627; 1910, XXVI, 544; 1911, XXVII, 80. 

(53) § 6. Courts in the Fifth Circuit.— The courts of the Fifth Circuit 
shall be held as follows : 

1. The Court of General Sessions for Kershaw County shall be held 
at Camden on the first Monday in March, the first Monday in July, and 
on the second Monday in November ; and the Court of Common Pleas for 
said county at the same place on the Thursday following the first Mon- 
day in March and the first Monday in July and the second Monday in No- 
vember: Provided, That no trial by jury of any civil case on Calendar 
One (1) in the Common Pleas Court shall be required within the week 
designated herein for commencement of said Court, except the parties 
appearing therein consent through their attorneys to enter upon trial: 
Provided, further. That the sessions of the summer term for said county 
shall not be extended beyond two weeks, except for the completion of a 
trial in actual progress. 

2. The Courts of General Sessions for the County of Richland shall be 
held at Columbia on the first Monday in January, on the fourth Monday 
in May, and on the first Tuesday in September, and sessions of the Court 
of Common Pleas for said county, at the same place, on the first Monday 
in February, on the fourth Monday in March, on the first Monday in May, 
on the second Monday in June, on the first Monday in October, and on the 
first Monday in December, and that at each of said terms of Court of Com- 
mon Pleas, not exceeding three weeks shall be devoted to the trial of jury 
cases. Whenever the business of the General Sessions Court is concluded, 
and the same is not immediately followed by the Court of Common 
Pleas, the Presiding Judge shall open the Court of Common Pleas 
without juries and hear cases on Calendars Two (2) and Three (3) as pre- 
pared by the Clerk of Court for the preceding term of the Court of Com- 



OF SOUTH CAROLINA 29 

mon Pleas, and shall order docketed all default eases presented and give 
judgment therein according to law. 

3. Terms Designated. — The Courts held under the provisions hereof in 
the Fifth Circuit, during the first four months of the year, shall be known 
as the spring term of the Court of General Sessions and Common Pleas, 
respectively; during the next four months as the summer terms of said 
Courts, respectively ; and during the last four months as the fall terms of 
said Courts, respectively. And the two sessions of the Court of Common 
Pleas herein appointed for Richland County during each of the terms 
above designated shall be known as the First and Second Sessions, re- 
spectively, of such terms. 

Civ. Pro., '12, § 22; Civ. Pro., '02, § 22; 1877, XVI, 299; 1896, XXII, 24; 1890, 
XXIII, 33 ; 1910, XXVI, 541 ; 1912, XXVII, 768 ; 1913, XXVIII, 13. 

(54) § 7. Courts in Sixth Circuit. — The Courts of the Sixth Circuit 
shall be held as follows : 

1. The Court of General Sessions at York, for the County of York on 
the third Monday after the fourth Monday in March, on the second Mon- 
day in July, on the second Monday in September, and on the fourth 
Monday in November, unless there be five Mondays in October, in which 
event the Court shall convene on the third Monday in November; and the 
Court of Common Pleas, at the same place, on the Wednesday first fol- 
lowing the first Monday in February, and on the "Wednesdays first fol- 
lowing the Mondays fixed for the holding of the Court of General Sessions 
at said place : Provided, That nothing herein contained shall be held to 
limit the Court of General Sessions to two days, if the work before the 
Court is not concluded in such time : Provided, further, That the Court 
of Common Pleas, where following the Court of General Sessions at the 
same Term of the Circuit Court for said county may be opened imme- 
diately after the adjournment of such Court of General Sessions, if the 
work of the latter be concluded in less than two days : Provided, further, 
That where the Court^ of Common Pleas follows the Court of General Ses- 
sions at the said term of the Circuit Court for said county. Calendar One 
of the Court of Common Pleas shall not be called peremptorily until the 
Mondays following the Mondays fixed for holding the Court of General 
Sessions at said place, but this latter provision shall not apply to the sum- 
mer term: Provided, further. That jury trial of civil cases shall not be 
had at the September term: And, provided, further. That only one venire 
of jurors shall be drawn for the February term, the jurors for said term 
to be summoned to attend on the Monday first following the convening of 
the Court, for service during that week of the said term. 

2. Chester County. — The Court of General Sessions at Chester, for the 
County of Chester, on the fourth Monday in March, the first Monday in 
July, and the third Monday after the second Monday in October; and the 
Court of Common Pleas, at the same place, on the "Wednesdays following 
the fourth Monday in March, and the third Monday after the second Mon- 
day in October : Provided, That Calendar One shall not be called perempto- 



30 CODE OF CIVIL PROCEDURE 

rily before the Monday following the fourth Monday in March, and the 
third Monday after the second Monday in October, 

3. Lancaster County. — The Court of General Sessions at Lancaster, for 
the County of Lancaster, on the second Monday of March, the third Mon- 
day of June, and the second Monday in October; and the Court of Com- 
mon Pleas, at the same place, on the Wednesday following the second Mon- 
day in March, and the Wednesday following the second Monday in Oc- 
tober : Provided, That no jury cases shall be tried before the third Mon- 
day in March and the third Monday in October, except by consent. 

4. Fairfield County. — The Court of General Sessions at Winnsboro, for 
the County of Fairfield, on the third Monday of February, the second Mon- 
day in June, and the third Monday in September ; and the Court of Common 
Pleas, at the same place, on the Wednesdays following the third Monday 
of February, and the third Monday of September: Provided, That no 
cause on Calendar One shall be forced to trial without agreement of attor- 
neys until the Mondays following the third Monday in February, and the 
third Monday in September. 

5. Business at Session's Terms. — ^Whenever in this Section provision is 
made for Courts of General Sessions only, the Judge presiding shall, at 
the conclusion of any such Court of General Sessions, open the Court of 
Common Pleas without juries, and give judgments by default on Calendar 
Three, hear and determine equity cases, and transact all other business of a 
regular term of Court of Common Pleas, except trials by jury. 

6. Time for Equity Cases. — There shall be allowed, for trial of jury 
cases, equity cases, motions and special matters, if the business of the 
Court demands it, at least two weeks each at the spring and winter terms 
of Court of Common Pleas for Fairfield, Chester and York Counties, and 
one week at the spring term and two weeks at the winter term of 
Court of Common Pleas for the County of Lancaster. And in each of said 
counties, upon the demand of either party, equity cases shall be tried in 
open Court, upon testimony then and there offered; the same to be taken 
,down by the Court Stenographer as a part of his official duty. 

Civ. Pro., '12, § 23; Civ. Pro., '02, § 23; 1885, XIX, 223; 1899, XXII, 34; 1900, 

XXIII, 812 ; 1907, XXV, 617 ; 1911, XXVII, 64 ; 1916, XXIX, 698. 

This section covers the same subject matter as is covered by the general provision of 
Section 593, therefore violative of Constitution Article 3, Section 34, subdivision 9. Southern 
National Bank v. Farmington Corp., et al., 99 S. C. 475, 83 S. E. 637. 

(55) § 8. Courts in Seventh Circuit. — The Courts of the Seventh Cir- 
cuit shall be held as follows : 

1. The Court of Common Pleas for Cherokee County shall convene at 
Gaffney on the first Monday of March for two weeks, on the first Monday 
of July for one week, and on the first Monday of November for two weeks. 
The Court of General Sessions for Cherokee County shall convene at Gaff- 
ney on the third Monday of March for one week, on the second Monday of 
July for one week, and on the third Monday of November for one week, 

1920, XXXI, 840. 

2. The Court of Common Pleas for Spartanburg County shall convene 
on the third Monday of January for three weeks, on the fourth Monday 



OF SOUTH CAROLINA 31 

of March for four weeks, ou the fourth Monday of May for three weeks, 
on the third Monday of July for one week, and on the fourth Monday of 
September for four weeks ; the Court of General Sessions for Spartanburg 
County shall convene at Spartanburg on the first Monday of January for 
two weeks, on the fourth Monday after the fourth Monday of March 
for one week, on the third Monday after the fourth Monday of May for 
one week, on the fourth Monday of July for one week, and on the fourth 
Monday after the fourth Monday of September for one week. 
1913, XXVIII, 30; 1916, XXIX, 695. 

3. The Court of Common Pleas for Union County shall convene at Union 
on the second Monday of February for two weeks ; on the first Monday of 
May for two weeks, and on the second Monday of September for one week, 
and on the first Monday of December for two weeks. The Court of Gen- 
eral Sessions shall convene at Union on the fourth Monday of February for 
one week; on the third Monday of May for one week; on the third Mon- 
day of September for one week, and on the third Monday of December for 
one week. 

1912, XXVII, 579 ; 1920, XXXI, 840. 

4. Court of General Sessions. — Should the business of the Court of 
General Sessions for any of said counties, . it any term, be completed or sus- 
pended before the time fixed by this Section for the opening of the Court 
of Common Pleas, the Presiding Judge shall open the Court of Common 
Pleas for said county, for the trial of all causes and the transaction of all 
business pending therein, except the trial of jury causes, which may be 
tried at such times, only by the consent of the parties or their attor- 
neys. 

5. Powers of Special Judge. — Whenever, for any reason, a Special 
Judge shall be appointed to hold any Court in any county of this circuit, 
he shall have all the powers throughout the circuit that a regular Judge 
would have, if presiding. 

6. When General Sessions Term Mat Be Continued. — If the busi- 
ness of the Court of General Sessions is not concluded at the end of any 
week, except the second week in January at Spartanburg, the petit jury 
drawn for that term of the Sessions Court shall be continued for the next 
week, or until the business of the Sessions Court is completed. 

7. Court of Common Pleas to Be Opened During Court of Sessions 
For Transaction of Certain Business. — The Court of Common Pleas 
for each of the counties within the circuit, shall be opened during the 
Court of Sessions, for the purpose of hearing equity cases, passing orders 
or transacting any Common Pleas business not requiring a petit jury. 

CiT. Pro., '12, § 24; Civ. Pro., '02, § 24; 1914, XXVIII, 602; 1916, XXIX, 695; 
1889, XX, 359 ; 1896, XXII, 25 ; 1898, XXII, 685 ; 1899, XXIII, 35 ; 1906, XXV, 48, 
49; 1908, XXV, 1011. 

(56) § 9. Courts of Eighth Circuit.— The Courts of the Eighth Circuit 
shall be held as follows : 

1. Abheville County. — The Court of General Sessions at Abbeville, for 
the County of Abbeville, on the fourth Monday in February, the first 



32 CODE OF CIVIL PROCEDURE 

Monday in June, and the first Monday in September; and the Court of 
Common Pleas, at the same place, on the fourth Monday in March, to last 
for two weeks, if so much be necessary, and on the second Monday in Oc- 
tober, to last for two weeks, if so much be necessary. 

2. Greenwood County. — The Court of General Sessions at Greenwood for 
the County of Greenwood, the first Monday in March, fourth Monday in 
June, and the fourth Monday in September; and the Court of Common 
Pleas at the same place on the second Monday in April and the fourth Mon- 
day in October, for two weeks, if so much be necessary. 

3. Laurens County. — The Court of General Sessions at Laurens, for the 
County of Laurens, on the second Monday in March, the third Monday in 
June, and the second Monday in September; and the Court of Common 
Pleas, at the same place, on the fourth Monday in April, to last for two 
weeks, if so much be necessary ; on the second Monday in July, to continue 
for three weeks, if so much be necessary, and on the first Monday in No- 
vember. 

4. Newherry County. — The Court of General Sessions at Newberry for 
the County of Newberry, on the third Monday in March, on the first Mon- 
day of July, and on the second Monday in December; and the Court of 
Common Pleas, at the same place, on the second Monday in May, to con- 
tinue for two weeks ; on the third Monday in September, to continue for one 
week, and on the third Monday in November, to continue for two weeks: 
Provided, however, That no jury be drawn for the Court of Common Pleas 
to be held on the third Monday of September. 

5. Court op Common Pleas to Be Opened During Court of General 
Sessions For Transaction op Certain Business — ^No Jury Cases at Sum- 
mer Term op Common Pleas por Abbeville and Greenwood. — The Court 
of Common Pleas in all the counties of the Eighth Judicial Circuit shall 
be opened at all terms of the Court of General Sessions for the purpose 
of rendering judgment by default, and for the trial of such equity cases 
as may be ready for hearing, and for granting orders of reference and 
other orders in civil cases : Provided, No civil business requiring a jury 
shall be tried at the summer term of the Court of Common Pleas in the 
Counties of Abbeville and Greenwood. 

Civ. Pro., '12, § 25; Oiv. Pro., '02, §§ 24, 25; 1889, XX, 360; 1891, XX, 1113; 1896, 
XXII, 26; 1899, XXIII, 37; 1900, XXIII, 314; 1901, XXIII, 629; 1910, XXVI, 538; 
1916, XXIX, 696 ; 1919,' XXXI, 113 ; 1920, XXXI, 807. 

State V. Washington, 82 S. C. 341, 344, 64 S. E. 386. 

(57) § 10. Courts in Ninth Circuit.— The Courts of the Ninth Circuit 
shall be held as follows: 

1. Charleston County. — The Court of General Sessions at Charleston, 
for the County of Charleston, on the second Monday in February, the first 
Monday in June, and the third, Monday in September, and the Court of 
Common Pleas at the same place on the second Monday in January, to con- 
tinue for three weeks, the first Monday in April for four weeks, the first 
Monday in October for four weeks. 



OF SOUTH CAEOLINA 33 

2. Common Pleas Open During General Sessions for Business Not Re- 
quiring a Jury. — ^The Court of Common Pleas for the said County of 
Charleston shall be deemed to be opened during the Court of Sessions for 
the purpose of hearing equity cases, passing orders or transacting any 
common pleas business not requiring a jury. 

Civ. Pro., '12, § 26; Civ. Pro., '02, § IS; 1884, XVIII, 686; 1SS7, XIX, 987; 1894, 
XXI, 717; 1898, XXII, 683; 1899, XXIII, 258; 1900, XXIII, 309; 1909, XXVI, 
163; 1913, XXVIII, 19. 31; 1915. XXIX, 179; 1917, XXX, 138; 1920, XXXI, 725; 
1921. XXXII. 203. 

(58) § 11. Courts in Tenth Circuit.— The Courts of the Tenth Circuit 
shall be held as follows : 

1. Anderson County. — The Court of General Sessions at Anderson, for 
the County of Anderson, beginning on the first Monday in February, the 
second Monday in May, the first Monday in September and the third Mon- 
day in November; and the Court of Common Pleas, at same place, begin- 
ning on the second Monday in March, the second Monday in April, and 
the third Monday in June, the first Monday in October and the first Mon- 
day in December. 

2. Oconee County. — The Court of General Sessions, at Walhalla, for the 
County of Oconee, beginning the first Monday in March, the first Monday 
in July and the first Monday in November; and the Court of Common 
Pleas, at the same place, beginning on the fourth Monday in March, the 
second Monday in July and the third Monday in October. 

3. At the time allotted for the Court of General Sessions for Ander- 
son and Oconee County, the Court of Common Pleas may be opened for the 
purpose of granting judgments by default and hearing matters without a 
jury. 

Civ. Pro., '12, § 27; Civ. Pro., '02, § 25; 1908, XXV, 1013; 1912, XXVII, 549; 
1913, XXVIII, 138 ; 1914, XXVIII, 608. 

(59) § 12. Courts in Eleventh Circuit.— The Courts of the Eleventh 
Circuit shall be held as follows : 

1. Lexington County. — The Court of General Sessions for the County of 
Lexington, at Lexington Court House, on the third Monday in January, 
the fourth Monday in May and the second Monday in September; and the 
Court of Common Pleas, at the same place, on the fourth Monday in March, 
Wednesday after the fourth Monday in May, and the second Monday in 
November. 

2. McCormick County. — The Court of General Sessions for the County 
of McCormick, at McCormick, on the first Monday in February; the third 
Monday in June and the first Monday in October; and the Court of Com- 
mon Pleas, at the same place, on Wednesday after the first Monday in 
February, Wednesday after the third Monday in June and Wednesday 
after the first Monday in October ; and the same panel of petit jurors shall 
be eligible to serve for both the Courts of General Sessions and Common 
Pleas, at each term of Court. 

4 C C P 



34 CODE OF CIVIL PROCEDURE 

3. Saluda County. — The Court of General Sessions for the County of 
Saluda, at Saluda Court House, on the fourth Monday in February, the 
fourth Monday in June and the fourth Monday in September; and the 
Court of Common Pleas, at the same place, on the third Monday in April, 
fourth Monday in July and the first Monday in December. 

4. Edgefield County. — The Court of General Sessions for the County of 
Edgefield, at Edgefield Court House, on the first Monday in March, the 
second Monday in July and the third Monday in October; and the Court 
of Common Pleas, at the same place, on the second Monday in March, Wed- 
nesday after the second Monday in July and the fourth Monday in Oc- 
tober; and the same panel of petit jurors shall be eligible to serve for both 
the Courts of General Sessions and Common Pleas at the July term of 
Court. 

5. Calendars to Be Called. — The Presiding Judge shall call Calendars 
2 and 3 peremptorily at the close of the Sessions Court, if there be time for 
the same, in the Counties of Lexington and Saluda, after the work of the 
Sessions Court shall have been concluded. 

Civ. Pro., '12, § 28; Civ. Pro., '02, § 22; 1877, XVI, 299; 1896, XXII, 24; 1897, 
XXII, 433: 1899, XXIII, 38, 685; 1909, XXVI, 169; 1916, XXIX, 717; 1917, 
XXX, 53. 

(60) § 13. Terms of Coiirt in Twelfth Circuit.— The Courts of the 
Twelfth Circuit shall be held as follows : 

1. Horry County. — The Court of General Sessions at Conway for the 
County of Horry, on the first Monday in March, the fourth Monday in 
May, and the fourth Monday in September; and the Court of Common 
Pleas at the same place on the Wednesdays succeeding the Mondays herein 
fixed for the holding of the Court of General Sessions at said place. 

2. Marion County.— The Court of General Sessions at Marion, for the 
County of Marion, on the first Monday after the first Monday in March, the 
first Monday after the fourth Monday in May, and the first Monday after 
the fourth Monday in September. 

3. Florence County. — The Court of General Sessions at Florence, for the 
County of Florence, on the second Monday after the first Monday in March, 
the second Monday after the fourth Monday in May, and the second Mon- 
day after the fourth Monday in September. 

4. Georgetown County. — The Court of General Sessions at Georgetown, 
for the County of Georgetown, on the third Monday after the first Mon- 
day in March, the third Monday after the fourth Monday in May, and the 
third Monday after the fourth Monday in September. 

5. Horry County — The Court of Common Pleas at Conway, for the 
County of Horry, on the fourth Monday after the first Monday in March, 
and on the fourth Monday after the fourth Monday in September. 

6. Marion County. — The Court of Common Pleas at Marion, for the 
County of Marion, on the sixth Monday after the first Monday in March, 
and on the tenth Monday after the fourth Monday in September. 



OF SOUTH CAROLINA 35 

7. Florence Coimty.— The Court of Common Pleas at Florence, for the 
County of Florence, on the ninth Monday after the first Monday in March 
and on the fifth Monday after the fourth Monday in September. 

8. Georgetown Coimty. — The Court of Common Pleas at Georgetown, for 
the County of Georgetown, on the eighth Monday after the first Monday 
in March, and on the eighth Monday after the fourth Monday in September. 

9. As to all the Courts of the Twelfth Judicial Circuit aforesaid, except 
said Courts for the County of Horry, the Presiding Judge of the Court of 
General Sessions is authorized to open the Court of Common Pleas, render 
judgments by default, try equity cases, and by consent of parties to try 
(at any term between the days on which said Courts of General Sessions 
open and close) any civil action in the saine manner, and with the same 
effect, as if said action should be tried at a regular term of the Court of 
Common Pleas. 

Civ. Pro., '12, § 29; Civ. Pro., '02, §§ 20, 21; 1909, XXVI, 23; 1915, XXIX, 71; 
1919, XXXI, 76, 1920, XXXI, 718. 

(61) § 14. Courts in Thirteenth Circuit.— The Courts of the Thir- 
teenth Circuit shall be held as follows : 

1. Greenville County. — The Court of Common Pleas at Greenville, for 
the County of Greenville, on the first Monday in February for three weeks, 
on the first Monday in April for four weeks, on the second Monday in 
June for four weeks, on the second Monday in September for two weeks, 
and the second Monday in October for two weeks and on the third Monday 
in November for three weeks. 

The Court of General Sessions at Greenville, for the County of Green- 
ville, on the first Monday in January for two weeks, on the second Monday 
in March for two weeks, on the second Monday in May for two weeks, on 
the fourth Monday in August for two weeks and on the fourth Monday 
in October for three weeks : Provided, That at the time allotted for the Court 
of General Sessions the Court of Common Pleas may be opened for the 
purpose of granting judgments by default and hearing matters without 
juries. 

2. Pickens County. — The Court of General Sessions at Pickens, for the 
County of Pickens, on the fourth Monday in February, the first Monday in 
June, and the fourth Monday in September; and the Court of Common 
Pleas, at the same place, on Wednesday after the fourth Monday in Feb- 
ruary, on Wednesday after the first Monday in June, and on Wednesday 
after the fourth Monday in September: Provided, That at the fall term 
of Court for said County of Pickens the Jury Commissioners, upon recom- 
mendation of the members of the bar, may draw two panels of petit jurors, 
the second panel to be summoned to appear for service on Monday follow- 
ing the week assigned for the trial of criminal cases for the trial of civil 
jury cases. 

Civ. Pro., '12, § 27 ; Civ. Pro., '02, § 25 ; 1908, XXV, 1013 ; 1912, XXVII, 549 ; 1913, 
XXVIII 138; 1914, XXVIII, 607; 1916, XXIX, 690. 



36 CODE OF CIVIL PROCEDURE 

(62) § 15. Courts in Fourteenth Circuit. — The Courts in the Four- 
teenth Judicial Circuit shall be held as follows: 

1. Hampton County. — The Courts of General Sessions for the County 
of Hampton, at Hampton, on the first Monday in February, on the first 
Monday in June for not longer than one week, and on the first Monday in 
October. The Courts of Common Pleas for said County of Hampton, at 
Hampton, on the Wednesday following the first Monday in February and 
on the Wednesday following the first Monday in June, and the Wednesday 
following the first Monday in October. The February term shall not con- 
tinue longer than three weeks, the June term longer than one week and the 
October term longer than three weeks. No civil jury cases shall be tried at 
the June term of the Court of Common Pleas unless by consent. 

2. Colleton County. — The Courts of General Sessions for the County of 
Colleton on the first Monday in March for two weeks, on the second Mon- 
day in June for one week, and on the fourth Monday in September for 
one week. The Courts of Common Pleas for said County of Colleton on 
the fourth Monday in March for two weeks and on the fourth Monday 
in October for three weeks. All of the said Courts for Colleton County 
shall be held at Walterboro. It shall be the duty of the Presiding Judge of 
the Court of General Sessions for Colleton County at the session of said 
Court commencing on the second Monday in June of each year, to open 
the Court of Common Pleas on Wednesday following the opening of the 
said Court of General Sessions, and to keep the same open for the trial 
of causes on the civil side of the Court not triable by a jury, for the re- 
mainder of said term. 

3. Jasper County. — The Courts of General Sessions at Ridgeland for 
the County of Jasper on the fourth Monday in February, for one week, 
and on the third Monday in June for not longer than one week, and on 
the third Monday in November for two weeks. The Courts of Common 
Pleas for said county shall convene as soon as the Courts of General Ses- 
sions shall have been concluded. Jurors drawn to serve for General Ses- 
sions shall also serve for jurors for the Common Pleas. 

4. Beaufort County. — The Courts of General Sessions shall be held for 
the County of Beaufort, at Beaufort, the third Monday in March for 
not longer than two weeks ; on the fourth Monday in June and on the first 
Monday in December for not longer than two weeks, and the Courts of 
Common Pleas on the third Monday in March for one week, the Wednes- 
day following the fourth Monday in June, and on the Wednesday fol- 
lowing the first Monday in December. 

5. Common Pleas Open During General Sessions. — The Court of 
Common Pleas for each of the counties of the said Fourteenth Judicial 
Circuit shall be deemed to be open during the General Sessions Court for 
the purpose of hearing equity matters, passing orders or transacting any 
Common Pleas business not requiring a jury. 

Civ. Pro., '12, §§19, 26; Civ. Pro., '02, § 19; 1883, XVIII, 462; 1884, XVIII, 886; 
1896, XXII, 20; 1900, XXIII, 310; 1901, XXIII, 624; 1910, XXVI, 542; 1911, 



OF SOUTH CAROLINA 37 

XXVII, S7; 1912, XXVII, 5S0, 770; 1913, XXVIII, 19, 31; 1914, XXVIII, 607; 
1915, XXIX, 79, 19S; 1910, XXIX, 700; 1917, XXX, 37, 49; 1920, XXXI, 919. 

(63) § 16. Courts of Common Pleas and General Sessions. — AVhenever 
in this Title provision is made for the Courts of General Sessions only the 
Judge presiding shall at the time of opening such Court of General Sessions 
also open the Court of Common Pleas without jurors ; and give judgments 
by default on Calendar Three, hear and determine equity cases and transact 
all other business of a regular term of a Court of Common Pleas, except 
trials by jury. 

Civ. Pro., '12, § 30; Civ. Pro., '02, § 26; 1878, XVI, 703; 1888, XVIII, 586; 1904, 
XXIV, 422 ; 1914, XXVIII, 570 ; 1916, XXIX, 700. 

Applies wherever provision is made by the statute for opening the general sessions only. 
Burwell & Dunn Co. v. Chapman, 59 S. C. 581, 38 S. E. 224. Though the Common Pleas 
so opened is not a regular term within the meaning of § (605). McLaurin v. Kelly, 40 S. C. 
486, 19 S. E. 143. 

Term of Common Pleas. Barnwell v. Chapman, 59 S. C. 581, 38 S. E. 224; Ward v. Tel. Co., 
62 S. C. 274, 40 S. E. 670. 

(64) § 17. Judge's Power to Adjourn Court of Common Pleas. 

— Should the business before the Court of General Sessions at any term 
not be completed on the arrival of the day fixed by law for the holding of 
the Court of Common Pleas for said county, the Judge presiding may, in 
his discretion, adjourn said Court of Common Pleas until the business of 
the Court of General Sessions shall have been concluded. But the pro- 
visions of this Section shall not apply to the Courts held in the County of 
Newberry. 

Civ. Pro., '12, § 31; Civ. Pro., '02, § 27; 1870, XIV, § 27; 1889, XX, 359. 

It is necessary to such adjournment that the Court of Common Pleas should be first opened 
on the day fixed for its holding. McKellar v. Parker, 29 S. C. 237, 7 S. E. 295. But where 
the officers and machinery are present in courthouse on the fixed day, that Court is then 
opened by operation of law, without anv formality. Hardin v. Trimmier, 30 S. C. 391, 9 S. E. 
342; Miller v. George, 30 S. C. 526, 9 S. E. 659; State v. Hasty, 76 S. C. 115, 56 S. E. 669. 

Term of Court ceases on the rising of the Court. Haughton v. Order of U. C. T., 108 S. C. 
73, 93 S. E. 393. 

(65) § 18. Power to Open Common Pleas Before Completion of Crim- 
inal Business. — Should the business before the Court of General Sessions 
at any term in any circuit in this State be completed or suspended before 
or after the day fixed by law for the opening of the Court of Common Pleas 
for any county in the State, the Presiding Judge may, in his discretion, 
before the completion of the criminal business, open the Court of Common 
Pleas for the trial of all causes or the dispatch of all business that may be 
pending in said Court in which the parties interested are ready to be heard. 

Civ. Pro., '12, § 32 ; Civ. Pro., '02, § 27a ; 1883, XVIII, 346. 

(66) § 19. Special Sessions of Circuit Courts. — Special Sessions of the 
Courts of Common Pleas or General Sessions may be held whenever so or- 
dered, either by the Chief Justice or by the Circuit Judge at the time 
holding the Circuit Court of the county for which the extra term may be 
ordered, of which extra term such notice shall be given as the Chief Jus- 
tice or the Circuit Judge so ordering the same may direct. If such extra 
term of either or both the Courts aforesaid be ordered by the Chief Justice, 
he may order any one of the Circuit Judges to hold the same ; but if such 
extra term be ordered by a Circuit Judge, as hereinbefore provided, then 
such extra term shall be held only by the Circuit Judge so ordering the 
same. No cause shall be tried at any extra term of the Court of Common 



38 CODE OF CIVIL PROCEDURE 

Pleas for any circuit unless the said cause shall have been previously 
docketed upon some one of the calendars of the last preceding regular 
term of said Court, 

The Clerk of such Court shall, at least fifteen days before the com- 
mencement of such special session, cause the time and place for holding 
the same to be notified, for at least two weeks successively, in one or more 
of the newspapers published nearest the place where the session is to be 
holden. All processes, writs and recognizances of every kind, whether 
respecting juries, witnesses, bail, or otherwise, which relate to the cases to 
be tried at the said special session, shall be considered as belonging to 
such session in the same manner as if they had been issued or taken in 
reference thereto. All business depending for trial at any special ses- 
sion shall at the close thereof be considered as of course removed to the 
next stated term of Court. Said special session shall be held in pursu- 
ance of an order which shall be transmitted to the Clerk of the Court, and 
by him entered on the records of the Court. 

Oiv. Pro., '12, § 33; Civ. Pro., '02, § 28; 1873, XIV, § 28; 1878, XVI, 395, § 3; 
1884, XVIII, 770. 

An order of reference connot be granted at a special term in any case not docketed at the 
preceding regular term. Simnis v. Phillips, 46 S. C. 149, 24 S. E. 97. But if no objection be 
raised, any cause may be heard. Rivers v. Priester, 58 S. C. 194, 36 S. E. 543. 

Requirement as to publication does not apply to the Special Court order under Civil Code, 
§§ 43. 44. State v. Davis, 88 S. C. 204, 210. 

Special term of Sessions Court mav be ordered by Chief Justice or presiding Judge after due 
advertisement. Haughton v. Order of U. C. T., 108 S. C. 73, 93. S. E. 393. 

(67) § 20. Petit Jurors in Common Pleas and General Sessions. 

— Petit jurors summoned to attend the Court of General Sessions in any 
county, except the County of Charleston, shall also attend and serve as 
jurors for the Court of Common Pleas next ensuing in and for said county, 
except as otherwise provided in Section (565) of this Code of Procedure. 
Civ. Pro., '12, § 34; Civ. Pro., '02, § 29; 1870, XVI, § 29. 

(68) § 21. Adjournment of Circuit Courts. — The Judge of the Circuit 
Court shall have power to direct any Circuit Court in this circuit to be 
adjourned over to a future day designated in a written order to the Clerk 
of said Court, whenever there is a dangerous and general disease at the 
place where said Court is usually holden. 

Civ. Pro., '12, § 35 ; Civ. Pro., '02, § 30 ; 1870, XVI, § 30. 

Such adjournment having been ordered, no inquiry can be made as to whether conditions 
existed. Adicks v. Allison, 21 S. C. 256. But when the term of Court fixed by law has 
expired, the Judge has no power to continue its existence and convene it &t another time. Ex 
parte Lilley, 7 S. C. 373. But Judge may order adjournment of Court from day to day till a 
fixed day before the next succeeding Court, and try a cause on that day. DeLeon v. Barrett, 
22 S. C. 412. 

A Circuit Judge may adjourn the Court beyond the time fixed for him to to hold court in 
any coianty of the Circuit where "a dangerous disease is prevalent." Haughton v. Order 
of U. C. T., 108 S. C. 73, 93 S. E. 393. 

(69) § 22. Before Whom Circuit Judge May Qualify.— The Circuit 
Judges of this State, upon their election, shall qualify by taking the oaths 
required by the Constitution of this State before a Justice of the Supreme 
Court, a Circuit Judge, a Clerk of the Supreme Court, or a Clerk of the 
Court of Common Pleas, or a Probate Judge of the county, and shall 
forthwith enter upon their duties; and said oaths must be filed in the 
office of the Secretary of State. 

Civ. Pro., '12, § 36 ; Civ. Pro., '02, § 31 ; 1870, XVI, § 31 ; XVII, 502 ; 1898, XXII, 
688. 



OF SOUTH CAROLINA 39 

(70) § 23. Circuit Courts Made Courts of Record.— The Circuit 
Courts herein established shall be Courts of Record, and the books of record 
thereof shall, at all times, be subject to the inspection of any person inter- 
ested therein. 

Civ. Pro., '12, § 37 ; Civ. Pro., '02, § 32 ; 1870, XIV, § 32. 

(71) § 24. Clerk and Deputy Clerk of Circuit Court.— The Clerk 
elected in each county pursuant to Section 27 of Article V of the Consti- 
tution shall be Clerk of the Courts of General Sessions and Common Pleas, 
and may appoint a deputy, who may perform the duties of Clerk, for 
whose acts such Clerk shall be responsible, and a record of whose appoint- 
ment shall be made in the Clerk's office, and such appointment may be re- 
voked at the pleasure of the Clerk; and in case no Clerk exists, the Judge 
shall have authority to appoint a person who shall perform the duties of 
Clerk, and said Deputy Clerk, or the one appointed by the Judge, shall be 
required to give the usual bond before entering on the duties of the office. 

Civ. Pro., '12, § 38 ; Civ. Pro., '02, § 33 ; 1870, XVI, § 33. 

Generally as to the foregoing chapter : Proceedings of a Circuit Court, held by the Judge of 
another Circuit, at a time unauthorized by law, are void. Ex parte DeHay, 3 S. 0. 564. 

Where, after the regular session of a Circuit Court has commenced, an Act transfers the 
county to another Circuit and iixes another day for holding the Court, it has jurisdiction to 
continue its session and to try cases. Shelton v. Mabin, 4 S. C. 541. 

A deputy Clerk of the Court may perform any and all the duties pertaining to the office 
of its principal. Linley v. Cit. National Bank, 108 S. C. 372, 94 S. E. 874. 



CHAPTER III. 
County Courts. 

(72) § 1. County Courts— How They May Be Established— Petition 
— Election. — Whenever one-third of the qualified registered electors 
of any county in this State shall file a petition with the Clerk of 
the Circuit of such county, praying for an election to be held in such 
county on the question of the establishment of a County Court therein, it 
shall be the duty of the said Clerk within ten days to make an order thereon, 
and serve the same on the Commissioners of Election, requiring the 
said Commissioners of Election of such county to hold an election, after 
first giving at least thirty days notice thereof in the newspapers of such 
county, upon the question of establishing a County Court in such county, 
not later than sixty days nor earlier than forty days thereafter. Said peti- 
tion shall be accompanied by a certificate of the Board of Supervisors of 
Registration that the names appearing upon said petition constitute one- 
third of the qualified registered electors of such county: Provided, That 
an election on said question shall not be had in any county oftener than 
once in four years ; that at such election the question of the establishment 
of such County Court shall be submitted to the electors in this form : ' ' Shall 

a County Court be established for the County of ? " inserting 

the name of the county in which the electors voting are resident, and upon 
this question the electors shall vote ' ' Yes " or " No. ' ' 

Civ. '12, § 3847; Civ. '02, § 2750; 1900. XXIII, 322. 

(73) § 2, Established on a Majority Vote of the County. — In the 

event a majority of the qualified electors voting at such election in any 



40 CODE OF CIVIL PROCEDURE 

one or more of the counties of the State shall vote ' ' Yes ' ' upon such ques- 
tion, then such County Court shall be, and hereby is, established in and 
for each of the counties in which a majority of the qualified electors so 
vote, with such jurisdiction and powers as is hereinafter provided. 
Civ. '12, § 3S48; Civ. '02, § 2751; 1900, XXIII, 322. 

(74) § 3. Jurisdiction in Criminal and Civil Cases. — The said County 
Court shall have jurisdiction to try and determine all criminal cases, ex- 
cept cases for murder, manslaughter, rape and attempt to rape, arson, com- 
mon law burglary; bribery and perjury. The said Court shall likewise 
have jurisdiction to try and determine all civil cases and special proceed- 
ings, both at law and in equity, where the value of the property in con- 
troversy or the amount claimed does not exceed one thousand dollars, and 
shall likewise hear and determine appeals taken from judgments rendered 
by Magistrates : Provided, That the County Court shall not have jurisdic- 
tion to try any action involving the title to real estate. 

Civ. '12, § 3849; Civ, '02, § 2752; 1900, XXIII, 322. 

(75) § 4. Shall Be a Court of Record. — The said County Court shall 
be a Court of Record, and the same presumption in favor of its jurisdiction 
and the validity of its judgments shall be indulged as in the case of judg- 
ments rendered by the Circuit Court. 

Civ. '12, § 3850, Civ. '02, § 2753; 1900, XXIII, 322. 

(76) § 5. Forms of Pleading and Practice in to Be Same as in Cir- 
cuit Court. — The same 'form of pleading and the same rules of pro- 
cedure, practice and evidence shall obtain in the said County Court as is 
provided by law for the conduct and trial of cases, civil and criminal, in 
the Circuit Courts : Provided, In all criminal cases wherein the punish- 
ment does not exceed a fine of one hundred dollars and imprisonment for 
thirty days, the same shall be tried without presentment by a grand 
jury on information filed by the County Solicitor. 

Civ. '12, § 3851 ; Civ. '02, § 2754 ; 1900, XXIII, 322. 

(77) § 6. General Laws Applying to County Courts. — All general 

laws and statutory provisions applying generally to the Circuit Courts 
of this State and trials of causes therein shall apply' to the said County 
Court, and the conduct and trial of causes therein, where not inconsistent 
with any of the provisions of this Chapter. 

Civ. '12, § 3852; Civ. '02, § 2755; 1900, XXIII, 322. 

(78) § 7. Appeals from Judgments. — The right of appeal shall exist 
from the judgment of the said County Court to the Circuit Court : Pro- 
vided, That on appeal to the Circuit Court the same shall be heard by the 
Presiding Judge without a jury, as in case of appeals from Courts of Mag- 
istrates, and all of the rules, practice and procedure now governing appeals 
from the said Courts of Magistrates shall apply to appeals from the County 
Court to the Circuit Court, and the Circuit Court shall have the same 
power in passing upon and deciding the same as now possessed in pass- 
ing upon and deciding appeals from the Courts of Magistrates : Provided, 
further, That in all appeals taken from the judgment of the County Court 



OF SOUTH CAROLINA 41 

to the Circuit Court, the Stenographer of the County Court shall make in 
writing a transcript of the testimony and other proceedings had in the cause 
in the County Court, certified by the County Judge, and lodge the same 
with the Clerk of the Circuit Court at least fifteen days before the next 
term of the said Circuit Court, upon being paid by the party so appealing 
three cents per hundred words for the said transcript. In case of the 
failure or refusal of the party so appealing to pay for the said transcript, 
such appeal shall be dismissed by the Circuit Court as for want of pros- 
ecution: Provided, If the party appealing makes it appear by affidavit 
that he is not able to pay for such transcript of the testimon^^, then the 
Stenographer shall furnish the same free of charge : Provided, That in no 
case shall the Stenographer's fee exceed ten dollars. In case the attorneys 
for the appellant and respondent shall agree upon a statement of the case 
as prepared by them for the hearing before the Circuit Court, such state- 
ment of the case shall be a sufficient return from the County Court, and 
no transcript or other paper from the County Court shall be necessary. 
Civ. '12, § 3853; Civ. '02, § 2756; IGOO, XXIII, 322. 

(79) § 8. Rights of Challenge of Jurors in County Courts. — In the se- 
lection of a jury for the trial of criminal cases in said County Court, the 
accused, when charged with a misdemeanor, shall be entitled to peremp- 
tory challenges not exceeding three, and the State two; and in the trial 
of cases of felony, the accused shall be entitled to peremptory challenges 
not exceeding five, and the State three. In cases where there are two or 
more persons jointly indicted and so tried, the accused shall be jointly 
entitled to six peremptory challenges in cases of misdemeanor and eight 
peremptory challenges in cases of felony, and no more. 

Civ. '12, § 3854; Civ. '02, § 2757; 1900, XXIII, 322. 

(80) § 9. Petit Jury to Consist of Six Persons— Trial Without a Jury. 

— Where a jury is required by law in the trial of causes, civil and crim- 
inal, in said Court, such jury shall consist of six persons. All criminal 
cases wherein the punishment does not exceed a fine of one hundred dollars 
or imprisonment for thirty days shall be tried before the County Judge 
without a jury, unless a trial by jury is demanded by the accused. Such 
cases wherein a trial by jury is not so demanded shall be carried to the 
foot of the calendar, to await trial by the County Judge after the jury cases 
for the term have been -disposed of. 

Civ. '12, § 3855; Civ. '02, § 2758; 1900, XXIII, 322. 

(81) § 10. County Judge— How Elected— Term of Office, Etc.— At 

the next ensuing general election the qualified electors of each of the coun- 
ties in which a majority of the said electors shall have voted for the estab- 
lishment of said County Court, shall elect a resident attorney at law thereof 
as County Judge. Such County Judge shall be the Presiding Judge of the 
County Court, and shall hold his office for four years and until his suc- 
cessor has been elected and has qualified. The said County Judge, before 
entering upon the duties of his office, shall take the same oath of office as 
that required by law of Circuit Judges, and shall be commissioned in the 
same manner as Circuit Judges. 

Civ. '12, § 3856; Civ. '02, § 2759; 1900, XXIII, 322. 



42 CODE OF CIVIL PROCEDURE 

(82) § 11. Jurisdiction of County Judge. — As to all cases and special 
proceedings within the jurisdiction of the County Court and pending 
therein, the County Judge of the county shall have the same jurisdiction 
with reference thereto, both in open Court and at Chambers, as is pos- 
sessed by Circuit Judges over cases pending in the Circuit Courts over 
which they are presiding or in the Circuits in which they are resident. 

Civ. '12, § 3857 ; Civ. '02, § 2760 ; 1900, XXIII, 322. 

(83) § 12, Terms of Court.— The said County Court shall hold its 
first term on the first Monday in the calendar month next succeeding the 
election and qualification of said County Judge, and hold a term beginning 
on the first Monday in every alternate month thereafter : Provided, Should 
the time at which any term of said Court is fixed conflict with the time 
of holding the Circuit Court for such county, then the term of the County 
Court shall begin on the Monday succeeding the time for the final ad- 
journment of the Circuit Court. The said County Court shall continue 
in session at each of its said terms until the business before it has been dis- 
posed of; and shall be open for the trial of cases, civil and criminal, from 
the beginning to the end of each of its said terms. 

Civ. '12, § 3858 ; Civ. '02, § 2761 ; 1900, XXIII, 322. 

(84) § 13. Grand Jury for County Court. — The Grand Jury as drawn 
in accordance with law for service upon the Court of General Sessions in 
each of the said counties shall constitute the Grand Jury for the said 
County Court, and shall meet with the said County Court at each of its 
terms, except the term next succeeding each session of the Circuit 
Court, at which term the Grand Jury need not meet with the County Court. 

Civ. '12, § 3859 ; Civ. '02, § 2762 ; 1900, XXIII, 322. 

(85) § 14. How Jurors Shall Be Drawn. — The Board of Jury Com- 
missioners as constituted by law in each of the counties of the State for 
the drawing of jurors for the Circuit Courts shall constitute the Board of 
Jury Commissioners for the drawing of jurors to attend upon the sessions 
of the County Court, and the law relating to the qualifications, drawing 
and summoning of jurors for attendance upon the Circuit Courts shall 
apply to the qualifications, drawing and summoning of jurors for the 
County Court: Provided, That not more than eighteen persons shall be 
drawn and summoned to attend at the same time at any session of the 
County Court unless the Court shall otherwise order. Jurors drawn and 
summoned shall appear and attend upon the sessions of the said County 
Court for which summoned until excused or discharged by the Judge pre- 
siding : Provided, That service as a juror in the County Court shall not be 
held to exempt the juror from service as such in the Circuit Court in the 
same year. 

Civ. '12, § 3860; Civ. '02, § 2763; 1900, XXIII, 322. 

(86) § 15. Duty of the County Solicitor. — It shall be the duty of the 
County Solicitor to prepare and, through the Presiding Judge of the Court 
of General Sessions, submit to the Grand Jury, while in attendance upon 
the Court of General Sessions, bills of indictment in all cases pending in 
the County Court where the punishment exceeds a fine of one hundred dol- 



OF SOUTH CAROLINA 43 

lars or imprisonment for thirty days, and have not been previously acted 
on by the Grand Jury ; and the Grand Jury shall act thereon, and report 
the same to the Presiding Judge, and the said Judge shall direct the Clerk 
of the Court of General Sessions to report the same to the Presiding Judge 
of the County Court at its next ensuing term. All cases in which bills of 
indictment are so found shall stand for trial by the County Court as though 
found by the Grand Jury while in attendance upon the County Court. 
Civ. '12, § 3S61 ; Civ. '02, § 2764 ; 1900, XXIII, 322. 

(87) § 16. Clerk of Circuit Court Ex Officio Clerk of County Court. 

— The Clerk of the Circuit Court shall be ez offcio Clerk of the County 
Court, and shall keep such calendars, minutes and records of the said 
County Court, and the causes therein pending, and attend and perform 
such duties as the Clerk thereof, as is required of him by law as Clerk of 
the Circuit Court. For services performed as Clerk of the County Court 
he shall receive the same compensation as if performed by him as Clerk 
of the Circuit Court. 

Civ. '12, § 3862; Civ. '02, § 2765; 1900, XXIII, 322. 

(88) § 17. Duty of Sheriff.— The Sheriff of the county shall attend 
upon all sessions of the said County Court, and shall be subject to the 
orders thereof, and shall execute the orders, writs and mandates of the 
said County Court, as required by law of him with reference to the Circuit 
Court. For all such service he shall receive the same compensation as is 
allowed by law for similar services in the Circuit Court : Provided, That 
for serving each venire for the County Court, the Sheriff shall receive the 
sum of ten dollars. 

Civ. '12, § 3868; Ci^. '02, § 2766; 1900, XXIII, 322. 

(89) § 18. Bailiffs — How Appointed and Compensation.~The Pre- 
siding Judge of the said County Court may appoint a sufficient number of 
bailiffs, not exceeding three, to attend upon the said Court, and be subject 
to the orders thereof. Such bailiffs shall receive as compensation for their 
services one dollar per day for the time actually engaged, and shall not be 
retained in attendance upon the Court longer than the exigencies of the 
business of the Court shall require. 

Civ. '12, § 3864 ; Civ. '02, § 2767 ; 1900, XXIII, 322. 

(90) § 19. Compensation of Jurors and Witnesses. — Grand and petit 
jurors in attendance upon the sessions of the said County Court shall re- 
ceive as a compensation for their services one dollar per day, and five cents 
per mile for necessary travel in going to and returning from the county 
seat. Witnesses in attendance upon the said County Court shall receive the 
same compensation as witnesses in attendance upon the Circuit Court. 

Civ. '12, § 3865; Civ. '02, § 2768; 1900, XXIII, 822. 

(91) § 20. Criminal Jurisdiction and Duties of Magistrates in Coun- 
ties Where County Courts Are Established. — The jurisdiction of Magis- 
trates in criminal cases in all counties wherein said County Court shall be 
established is hereby abolished: Provided, It shall be the duty of said 
Magistrates, and they shall have the power, to issue warrants and hold 



44 CODE OF CIVIL PROCEDURE 

preliminary examinations in all criminal cases, and take such action therein 
as is now provided by law in criminal cases beyond their jurisdiction; in 
committing or binding over defendants and witnesses, it shall be the duty 
of said Magistrates to commit and bind over for trial at the next ensuing 
session of the County Court — except in those cases over which the County 
Court has no jurisdiction, in which case the said Magistrates shall com- 
mit or bind over for trial in the Court of General Sessions : Provided, 
further, It shall be the duty of said Magistrates, in binding over witnesses, 
to appear and testify, on behalf of the State, before the County Court in 
cases wherein the punishment exceeds a fine of one hundred dollars or im- 
prisonment for thirty days, to insert a provision in the recognizance re- 
quiring said witnesses to appear and testify in said case before the grand 
jury at the next ensuing term of the Circuit Court, when the said next 
ensuing term of the Circuit Court is appointed by law to be held before 
a term of the County Court; it shall be the duty of said Magistrates, im- 
mediately after committing or binding over a defendant for trial, to lodge 
with the Clerk of the Court by which the said defendant is to be tried, all 
papers and proceedings connected with the said case: Provided, That the 
Circuit Solicitor shall have the power to direct what cases may be tried 
before the Court of Sessions in all cases when the said Court has concur- 
rent jurisdiction with the County Court. 
Civ. '12, § 386B; Civ. '02, § 2769; 1900, XXIII, 322. 

(92) § 21. Civil Jurisdiction of Magistrates in Counties Where 
County Courts Are Established. — The jurisdiction of Magistrates in civil 
cases and special proceedings in all counties wherein said County Court 
shall be established is hereby limited to cases and proceedings wherein the 
value of the property in controversy or the amount claimed does not exceed 
twenty-five dollars. 

Civ. '12, § 3SG7; Civ. '02, § 2770; 1900, XXIII, 322. 

(93) § 22. County Solicitor — How Appointed — Term of Office, Etc. 

— It shall be the duty of the Governor, upon the recommendation of the 
members of the General Assembly from each of the counties where said 
County Court has been established, to appoint for each of said counties 
a resident attorney at law as County Solicitor, whose term of office shall 
continue until his successor shall have been elected by the qualified elec- 
tors of the county at the next succeeding general election, and until his 
said successor qualifies. After the first term herein provided for, the term 
of the County Solicitor shall be for four years, and until the election and 
qualification of a successor, the qualified electors electing such successor 
at the general election occurring every four years. 
Civ. '12, § 3868; Civ. '02, § 2771; 1900, XXIII, 322. 

(94) § 23. Duties of County Solicitor. — The said County Solicitor 
shall represent the State in all cases brought before the said County Court 
wherein the State is a party, and shall have the same powers and perform 
the same duties with reference thereto as a Circuit Solicitor with reference 
to cases brought before the Court of General Sessions. He shall also attend 
all inquests held by the Coroner, aid in procuring evidence, and represent 



OF SOUTH CAROLINA 45 

the State in the examination of witnesses at such inquests ; and he shall 
ex officio be the legal adviser of the County Board of Commissioners with- 
out extra compensation. 

Civ. '12. § 3S(iil; Civ. '02, § 2772; IHOO, XXIII, 322. 

(95) § 24. Salaries of Judges and Solicitors of County Courts. — The 
said County Judge shall receive as a compensation for his services the sum 
of one thousand dollars per annum, and the said County Solicitor the sum 
of three hundred dollars per annum, to be paid by the county. 

Civ. '12, § 3S70; Civ. '02, § 2773; 1900, XXIII, 322. 

(96) § 25. Judge and Solicitor Prohibited Practicing in Cause of 
Which County Court Has Jurisdiction. — The said County Judge and 
County Solicitor are prohibited from practicing as attorneys at law in any 
cause or matter of which the said County Court has jurisdiction, or may 
acquire jurisdiction, and upon conviction of any wilful violation of this 
Section, the offender shall be adjudged to have forfeited his office and shall 
be sentenced to pay a fine of not less than two hundred nor more than five 
hundred dollars, and be imprisoned for a period of not less than one month 
nor more than six months : Provided, The said County Solicitor shall be 
at liberty to practice in all causes and matters on the civil side of said 
Court. 

Civ. '12, § 3S71; Civ. '02, § 2774; ICOO, XXIII, 322. 

(97) § 26. Judge Shall Appoint a Stenographer — Salary of. Etc. 

— The County Judge in each of the counties wherein the said County 
Court is established shall appoint for the said County Court an official 
Stenographer, who shall attend upon the sessions of the said Court and 
perform the same duties in connection therewith as are performed by Cir- 
cuit Stenographers in the Circuit Courts. The said Stenographer shall 
receive from the county wherein he is appointed a salary of three hundred 
dollars per year. 

Civ. '12, § 3872; Civ. '02, § 277.5; 1900, XXIII, 822. 

(98) § 27. Counties Excepted from Provisions of Chapter. — The pro- 
visions of this Chapter shall not apply to the Counties of Abbeville, An- 
derson, Bamberg, Beaufort, Berkeley, Charleston, Chester, Chesterfield, 
Clarendon, Cherokee, Dorchester, Edgefield, Fairfield, Florence, Green- 
wood, Georgetown, Horry, Marion, Lancaster, Laurens, Lexington, Marl- 
boro, Orangeburg, Oconee, Pickens, Saluda, Sumter, Union, Williamsburg, 
Kershaw, Barnwell, Spartanburg, Greenville and York. 

Civ. '12, § 3873; Civ. '02, § 2776; 1900, XXIII, 322. 



RICHLAND COUNTY. 

(99) § 28. County Court for Richland County. — A majority of the 
qualified electors voting at an election held, as provided by law, upon 
the question of the establishment of a County Court for the County of 
Richland, having voted in favor thereof, a County Court shall be, and is 



46 CODE OF CIVIL PKOCEDURE 

hereby, established in and for said County of Richland with such juris- 
diction as is hereinafter provided. 
1917, XXX, 156. 

(100) § 29. Jurisdiction.— The said County Court shall have concur- 
rent jurisdiction with the Court of Common Pleas in all civil cases and 
special proceedings, both at law and in equity, where the amount de- 
manded in the complaint does not exceed three thousand ($3,000.00) 
dollars, or when the value of the property involved does not exceed three 
thousand ($3,000.00) dollars, and in all other civil cases and special pro- 
ceedings, both at law and in equity, in which there is no money demand, 
or in which the right involved cannot be monetarily measured. That the 
said Court shall have concurrent jurisdiction with the Circuit Court to 
hear and determine all appeals in civil cases from judgments rendered by 
Magistrates' Courts; and the proceedings on such appeal -shall be the 
same as is now provided for appeal from said last named Courts to the 
Courts of Common Pleas and General Sessions. 

1917, XXX, 156; 1921, XXXII, 123. 

County Courts have concurrent appellate jurisdiction with Circuit Courts. Strickland v. S. A. L. 
Ry., 112 S. 0. 66, 98 S. E. 853. 

(101) § 30. Courts of Record — Seal — Presumption as to Validity of 
Judgments and Decrees. — The said County Court shall be a Court of 
Record, and have a seal inscribed with the words, ' ' County Court of Rich- 
land County," and the same presumption in favor of its jurisdiction and 
the validity of its judgments and decrees shall hold as in case of judg- 
ments rendered by the Circuit Court. 

1917, XXX, 156. 

County Courts have concurrent appellate jurisdiction with Circuit Courts. Strickland v. S. A. L. 
Ry., 112 S. C. 66. 98 S. E. 853. 

(102) § 31. General Laws to Apply — Entry of Judgment. — All 

general laws and statutory provisions applicable generally to the Circuit 
Courts of this State and trial of cases therein shall apply to said County 
Courts and to the conduct and trial of cases therein where not inconsistent 
with this Act: Provided, That any judgment rendered, other than that 
upon the verdict of a jury, may be entered upon the day of such rendition. 
1917, XXX, 156 ; 1918, XXX, 748. 

County Courts have concurrent appellate jurisdiction with Circuit Courts. Strickland v. S. A. L. 
Ry., 112 S. C. 66, 98 S. E. 853. 

(103) § 32. Forms of Pleading— Rules of Evidence— Filing of Plead- 
ings. — The same forms of pleadings and the same rules of procedure, 
practice and evidence shall obtain in the County Court as is provided by 
law for the trial of civil cases in the Circuit Court, where not inconsistent 
with the provisions of this Act : Provided, That the pleadings or copies 
thereof in a case for trial before the said Court shall be filed in the Clerk 's 
office, as now provided by law for the Circuit Court, before six o'clock in 
the afternoon of the Wednesday preceding the first day of the next ensuing 
term of the said County Court, and the Clerk shall forthwith enter the 
cases upon the appropriate calendar. 

1917, XXX, 156. 

County Courts have concurrent appellate jurisdiction with Circuit Courts. Strickland v. S. A. L. 
Ry., 112 S. C. 66, 98 S. E. 853. 



OF SOUTH CAROLINA 47 

(104) § 33. Jury Trial — Waiver. — Where a jury is required by law 
in the trial of all civil cases, in said Court, said jury shall consist of six 
persons. In all civil actions either party may demand a jury trial in all 
cases in which a trial by jury is granted of right under the Constitution 
and laws of this State, but such demand must be made on or before the 
first day of the term, or upon the call of the calendar on the first day of 
the term, and the failure to make such demand shall be a waiver of said 
right of trial by jury. 

1917, XXX, 156. 

County Courts have concurrent appellate jurisdiction with Circuit Courts. Strickland v. S. A. L. 
Ry., 112 S. C. 66, 98 S. E. 853. 

(105) § 34. Powers in Cases and Special Proceedings — May Grant 
Bail and Issue Writs of Habeas Corpus. — In all cases and special pro- 
ceedings within the jurisdiction of the County Court and pending therein 
the Judge of the County Court shall have the same jurisdiction both in open 
Court and at chambers, as is possessed by Circuit Judges over cases pend- 
ing in the Circuit Court over which they are presiding, or in the Circuits in 
which they are residents : Provided, That said County Judge shall have the 
power to issue writs of ha'beas corpus in all cases and to grant bail, except 
in capital cases. 

1917, XXX, 156. 

County Courts have concurrent appellate Jurisdiction with Circuit Courts. Strickland v. S. A.'L. 
Ry., 112 S. C. 66, 98 S. E. 853. 

(106) § 35. Appeal — Procedure. — In all civil actions and special 
proceedings of which said County Court shall have jurisdiction, the right 
of appeal shall be to the Supreme Court of the State, in the same manner 
and pursuant to the same rules, practice and procedure as now govern 
appeals from Circuit Courts. 

1917, XXX, 156. 

County Courts have concurrent appellate jurisdiction with Circuit Courts. Strickland v. S. A. L. 
Ry., 112 S. C. 66, 98 S. E. 853. 

(107) § 36. Sessions — To Be Open Always for Certain Business. — The 

County Court shall be held at the discretion of the County Judge at such 
times as he may deem necessary to properly dispatch the business of the 
Court, and continue for such time as is necessary to dispose of the busi- 
ness before the Court : Provided, That said Court shall always be open for 
the transaction of such civil business as can be disposed of without a jury : 
And provided, further. That each week which may be designated for jury 
trials shall be considered a term. 
1917. XXX, 156 ; 1918, XXX, 748. 

County Courts have concurrent appellate jurisdiction with Circuit Courts. Strickland v. S. A. L. 
Ry., 112 S. C. 66, 98 S. E. 853. 

(108) § 37. Juries. — The Board of Jury Commissioners as consti- 
tuted by law in said county for the drawing of the jurors for the 
Circuit Court shall constitute the Board of Jury Commissioners for the 
drawing of jurors to attend upon the sessions of the County Court, and 
such Commissioners shall, upon the order of said Court, at such times as 
shall be fixed, and after five days notice of such drawing, from the jury 
box (whether the same has been previously drawn or not), draw a panel 
of petit jurors, and the Clerk of said Court shall immediately issue to the 



48 CODE OF CIVIL PROCEDURE 

Sheriff a venire containing the names of the persons thus drawn as petit 
jurors, which venire shall be returnable at such times as may be named by 
the said Court, and the persons so served shall be the jurors for said Court, 
and the law relating to the qualification, drawing and summoning of jurors 
of the Circuit Court, shall apply, except as herein otherwise provided: 
Provided, That not more than eighteen persons shall be drawn and sum- 
moned to attend at the same time at any session of the County Court, un- 
less the Court shall otherwise order. Jurors drawn and summoned shall 
appear and attend upon the sessions of the County Court for which sum- 
moned until excused or discharged by the Judge thereof : Provided, That 
services as jurors in the County Court shall not be held to exempt a juror 
from services as such in the Circuit Court in the same year, nor shall a juror 
be required to serve in such County Court more than once in the same year : 
Provided, further, That plaintiff and defendant in a cause shall, each, be 
allowed to strike three jurors. 
1917, XXX, 156 ; 1918, XXX, 748. 

County Courts have concurrent appellate jurisdiction with Circuit Courts. Strickland v. S. A. L. 
Ry., 112 S. C. 66, 98 S. E. 853. 

(109) § 38. Clerks— Duties— Compensation.— The Clerk of The Cir- 
cuit Court shall be ex officio Clerk of the County Court, and shall keep 
such calendars, minutes and records of the said County Court, and the cases 
therein pending, and attend and perform the duties of the Clerk thereof, 
as is required of him by law as Clerk of the Circuit Court. That the costs 
and fees of the Clerk in civil cases in the County Court shall be the same as 
those allowed in similar cases in the Court of Common Pleas. That the 
County Commissioners of said county shall provide all books necessary for 
keeping records of said Court. 

1917, XXX, 156 ; 1918, XXX, 748. 

County Courts have concurrent appellate jurisdiction with Circuit Courts. Strickland v. S. A. L. 
Ry., 112 S. C. 66, 98 S. E. 853. 

(110) § 39. Sheriff— Duties— Compensation.— The Sheriff of the 
county shall attend upon all sessions of the said County Court, and 
shall be subject to the orders thereof, and shall execute the orders, writs 
and mandates of the said County Court as required by law- of him in 
reference to the Circuit Court. That the cost and fees of the Sheriff in 
civil cases in the County Court shall be the same as those allowed in sim- 
ilar cases in the Court of Common Pleas. 

1917, XXX, 156. 

County Courts have concurrent appellate jurisdiction with Circuit Courts. Strickland v. S. A. L. 
Ry., 112 S. C. 66, 98 S. E. 853. 

(111) § 40. Compensation of Jurors and Witnesses. — Jurors in at- 
tendance upon the sessions of the County Court shall receive as compen- 
sation for their services the same per diem and mileage as is allowed said 
jurors in the Circuit Court. Witnesses in attendance upon the said County 
Court shall receive the same compensation as witnesses in attendance upon 
the Circuit Court. 

1917, XXX, 156. 

County Courts have concurrent appellate jurisdiction with Circuit Courts. Strickland v. S. A. L. 
Ry., 112 S. C. 66, 98 S. E. 853. 



OF SOUTH CAEOLINA 49 

(112) § 41, Judge — Term — Oath — Salary — Vacancy — Special Judge 
— Not to Practice in Certain Cases. — It shall be the duty of the Gov- 
ernor to appoint a resident attorney at law of Richland County as 
County Judge, who shall receive the largest number of votes at the time 
of the submission pf this Act to the people for its approval, and who shall 
hold office until the next general election and until his successor shall be 
appointed and qualified and who shall be the Presiding Judge of said 
County Court. The said Judges of said Court shall possess all the powers 
in respect to preserving order or punishing for contempt of Court as now 
possessed by Circuit Judges. The term of office for the County Judge shall 
be four years from the date of the expiration of his predecessor's term. At 
the next general election, and every alternate election thereafter, an elec- 
tion shall be had for County Judge, whose term of office shall be four years 
from the date of expiration of his predecessor's term of office, or until his 
successor has been elected and qualified. That the said County Judge 
before entering upon the duties of his office shall take the same oath of 
office as required by law of all Circuit Judges, and shall be commissioned 
in the same manner as Circuit Judges. The salary of the County Judge 
shall be four thousand ($4,000.00) dollars per annum, reck,oning from 
January 1, 1921, to be paid by the county in monthly installments. 
Said Judge shall not charge on the facts, but shall declare the law only. 
All vacancies in the office of County Judge shall be filled by appoint- 
ment by the Governor, such appointment holding for the unexpired 
term of his predecessor. In case of absence or inability of the County 
Judge, at the time fixed for holding any term of said Court, the Gov- 
ernor may appoint some other suitable person, being an attorney at law, 
to hold said term of Court as special County Judge. The County Judge, 
as provided for in this Act, shall not be allowed to practice law in 
the Courts of this State. 

1917, XXX, 156; 1918, XXX, 748; 1920, XXXI, 943; 1921, XXXII, 12.3. 

County Courts have concurrent appellate Jurisdiction with. Circuit Courts. Strickland v. S. A. L. 
Ry., 112 S. C. 66, 98 S. E. 853. 

(113) § 42. Bailiffs — Compensation. — The said Judge of the County 
Court may appoint a sufficient number of bailiffs, not to exceed two, 
to attend upon the said Court, and be subject to the orders thereof; 
and the said bailiffs shall have the same power as constables of said county, 
and one of said bailiff's shall receive as compensation three ($3.00) dollars 
per day for the time actually engaged, and shall not be retained in attend- 
ance upon the Court longer than the exigencies of the Court may require, 
and the other bailiff shall attend upon the Court daily and receive as com- 
pensation the sum of twelve hundred ($1,200.00) dollars per annum, to be 
paid by the county in monthly installments, reckoning from. January 1, 
1920. 

1917, XXX, 156 ; 1918, XXX, 748 ; 1919, XXXI, 147 ; 1920, XXXI, 943. 

County Courts have concurrent appellate jurisdiction with Circuit Courts. Strickland v. S. A. L. 
Ry., 112 S. C. 66, 98 S. E. 853. 

(114) § 43. stenographer. — The said County Judge shall appoint for 
the said County Court an official Stenographer, who shall attend upon the 
sessions of said Court and perform the duties in connection therewith 
as performed by the Circuit Stenographer in the Circuit Court. That 

5 C C P 



50 CODE OF CIVIL PROCEDURE 

the said Stenographer shall receive from the county the salary of 
two thousand dollars ($2,000.00) per annum reckoning from January 1, 
1921, to be paid by the county in monthly installments, and, in addition, 
such fee as provided herein: Provided, That no Stenographer of the 
County Court shall appear as counsel in said Court. 
1917, XXX, 156; 1918, XXX, 748; 1919, XXXI, 235; 1921, XXXIL 123. 

County Courts have concurrent appellate jurisdiction with Circuit Courts. Strickland v. S. A. L. 
Ry., 112 S. C. 66, 98 S. E. 853. 

(115) § 44. Costs and Disbursements. — All costs and disbursements 
allowed the prevailing party, and all costs and fee allowed officers of 
Court in actions in the Court of Common Pleas, shall be allowed in actions 
in this Court. 

1917. XXX. 156. 

County Courts have concurrent appellate Jurisdiction with Circuit Courts. Strickland v. S. A. L. 
Ry., 112 S. C. 66, 98 S. E. 853. 

(116) § 45. Court Room — Code and Acts to Be Furnished. — The 

County Commissioners of Richland County shall make provisions by 
setting apart suitable quarters in the Court House for holding the sessions 
of said County Court, and shall provide the said Court with both volumes 
of the Code of Laws of South Carolina, as at present published and as may 
hereafter be published, together with the public Acts of the General Assem- 
bly for each year as they are issued, beginning with 1912. 
1917, XXX, 156 ; 1918, XXX, 748. 

County Courts have concurrent appellate jurisdiction with Circuit Courts. Strickland v. S. A. L. 
Ry., 112 S. C. 66, 98 S. E. 853. 



GREENVILLE COUNTY. 

(117) § 1. County Court in and for Greenville County. — A ma- 
jority of the qualified electors of the County of Greenville having voted 
at the general election of 1920 in favor of the establishment of a County 
Court in and for said county as provided by the Act of the General As- 
sembly approved February 19, 1920, a County Court is established in and 
for said county in pursuance of the said Act of the General Assembly with 
such jurisdiction as is hereinafter provided. 

1920, XXXI, 791. 

(118) § 2. Jurisdiction. — The said County Court shall have con- 
current jurisdiction with the Court of Common Pleas in all civil cases 
and special proceedings, both at law and in equity, where the amount de- 
manded in the complaint does not exceed three thousand ($3,000.00) dol- 
lars, or when the value of the property involved does not exceed three 
thousand ($3,000.00) dollars. That said Court shall have exclusive juris- 
diction to hear and determine all appeals in civil cases from judgments ren- 
dered by Magistrates' Courts; and the proceedings on such appeal shall 
be the same as is now provided for appeal from said last named Courts to 
the Courts of Common Pleas and General Sessions. The said County Court 
shall have concurrent jurisdiction with the Court of General Sessions and 
invested with jurisdiction to try all cases except cases of murder, man- 



OF SOUTH CAROLINA 51 

slaughter, rape or attempt to rape, arson, common law burglary, bribery 
or perjury. 

1920, XXXI, 702. 

(119) § 3. Appeals from Inferior Courts. — The said County Court 
shall liave jurisdiction to hear and determine appeals in all criminal 
eases from the Magistrates' Court and from Municipal Courts, or Town 
Councils of any of the cities and towns in Greenville county. 

1921. XXXII, 332. 

(120) § 4. County Solicitor — Election — Term — Compensation. — There 
shall be selected by the Legislative Delegation a County Solicitor 
from the members of the Greenville Bar, to prosecute all criminal 
cases before the County Court, to serve until the next general 
election, at which time his successor shall be elected in the same 
manner as provided for the county officers. The term of office shall 
be for four years and until his successor shall have been elected and 
qualified, and his salary shall be fifteen hundred ($1,500.00) dollars a 
year, payable monthly, by the County Treasurer upon the warrant of 
such County Solicitor. 

1921, XXXII, .334. 

(121) § 5. A Court of Record. — The said County Court shall 
be a Court of Record and have a seal inscribed with the words "County 
Court of Greenville, ' ' and the same presumption in favor of its jurisdiction 
and the validity of its judgments and decrees shall hold as in case of judg- 
ments rendered by the Circuit Court and Courts of General Sessions. 

1920, XXXI, 792. 

(122) § 6. Transfer of Causes. — The said County Judge shall have 
jurisdiction to remove to the Court of Common Pleas of said county, any 
case where it may appear to his satisfaction that the case or any part 
thereof is not within the jurisdiction of the County Court, or any case in 
which the Judge has been of counsel, has any personal interest in, or 
is connected by blood or marriage to, any of the parties to the suit. 

1921. XXXII, .332, 

(123) § 7. Statutes Governing Circuit Courts Applicable, Unless 
Inconsistent. — All general laws and statutory provisions applicable 
generally to the Circuit Courts and Courts of General Sessions of this 
State and trial of cases therein shall apply to said County Court and to the 
conduct and trial of cases therein where not inconsistent with this Act. 

1920, XXXI, 792. 

(124) § 8. Procedure. — The same form of pleadings and the 
same rules of procedure, practice and evidence shall obtain in the County 
Court as is provided by law for the trial of civil and criminal cases in the 
Circuit Court and Courts of General Sessions where not inconsistent with 
the provisions of this Section : Provided, That the pleadings or copies 
thereof in cases for trial before the said Court shall be filed in the Clerk 's 
office, as now provided by law for the Circuit Court, before six o'clock in 
the afternoon of the Wednesday preceding the first day of the next ensuing 



52 CODE OF CIVIL PROCEDURE 

term of the said County Court, and the Clerk shall forthwith enter the 
cases upon the appropriate calendar. 

1920, XXXI, 793. 

(125) § 9. Attendance of Grand Jury — ^Indictments. — The Grand 
Jury, as drawn in accordance with law for service upon the Court of 
General Sessions, for Greenville county, shall constitute the Grand Jury 
for the said County Court, and need not meet with said County Court, 
except when ordered to do so by the County Judge. The Solicitor of the 
13, Judicial Circuit, or the County Solicitor, if one is provided for by law, 
shall prepare all bills of indictment wherein a person is entitled to a 
presentment of a Grand Jury, and he shall present said indictments to the 
Grand Jury, of such cases as the County Court has jurisdiction, at 
each session of the Court of General Sessions, and it shall be the duty 
of the Clerk of the Court of General Sessions to certify said bills 
of indictments to the County Court for trial or disposition thereof 
where true bills are found by the said Grand Jury. That the County 
Judge shall have the authority to submit to the Grand Jury, 
when called into his Court, such bills of indictment as he may desire to 
submit to them, when the offenses charged are within the juris.diction 
of said County Court. 

1921, XXXII, 332, 

(126) § 10. Juries — Jury Trials. — Where a jury is required by law 
in the trial of all civil and criminal cases in said Court, said jury shall 
consist of six persons. In all actions either party may demand a jury 
trial in all cases in which a trial by jury is granted of right under the 
Constitution and laws of this State, but such demand must be made on 
or before the case is called for trial, and the failure to make such demand 
shall be a waiver of said right of trial by jury. 

1920. XXXI, 793. 

(127) § 11. Drawing of Juries — Challeng-es. — The empaneling of 
juries in all criminal cases in said Court shall be according to the practice 
now established in the Courts of General Sessions. That in the selection 
of a jury for the trial of criminal cases in said County Court the accused, 
when charged with misdemeanor, shall be entitled to peremptory chal- 
lenges not exceeding three, and the State two, and in the trial of cases of 
felony the accused shall be entitled to peremptory challenges not exceed- 
ing five and the State three. In cases where there are two or more persons 
jointly indicted and so tried, the accused shall be jointly entitled to four 
peremptory challenges in cases of misdemeanors and the State two, and 
in each case of felony, the defendant jointly shall be entitled to six 
peremptory challenges and the State four. That the empaneling of 
juries in all civil cases in which a jury shall be charged with the trial 
of any issue shall be according to the practice now established in 
the Court of Common Pleas, except the list of jurors now required 
by law to be furnished shall consist of ten, from which list each party 
shall alternately strike until there remain but six, which shall consti- 
tute the jury to try the case or issue. 

1921, XXXII, .332, 



OF SOUTH CAROLINA 53 

(128) § 12. Powers of Judge. — In all cases and special proceed- 
ings within the jurisdiction of the County Court and pending therein the 
Judge of the County Court shall have the same jurisdiction both in open 
Court and at chambers, as is possesssed by Circuit Judges over cases pend- 
ing in the Circuit Court over which they are presiding, or in the Circuits 
in which they are residents : Provided, That said County Judge shall have 
the power to issue writs of habeas corpus in all cases and to grant bail, 
except in capital cases. 

1920, XXXI, 793. 

(129) § 13. Appeals. — In all criminal and civil actions and special 
proceedings of which said County Court shall have jurisdiction, the right 
of appeal shall be to the Supreme Court of the State, in the same manner 
and pursuant to the same rules, practice and procedure as now governs 
appeals from Circuits Courts and Courts of General Sessions. 

1920, XXXI, 7(3. 

(130) § 14. Terms. — The County Court shall be held at the discretion 
of the County Judge at such times as he may deem necessary to promptly 
dispatch the business of the Court, and continue for such time as is nec- 
essary to dispose of the business before the Court: Provided, That said 
Court shall always be open for the transaction of such civil business as can 
be disposed of without a jury. 

1920, XXXI, 793. 

(131) § 15. Jury Commissioners — Venires. — The Board of Jury 
Commissioners, as constituted by law in said county for the drawing of the 
jurors for the Circuit Court, shall constitute the Board of Jury Commis- 
sioners for the drawing of jurors to attend upon the sessions of the County 
Court, and such Commissioners shall, upon the order of said Court, at such 
time as shall be fixed, from the jury box (whether the same has been 
previously drawn or not) draw a panel of petit jurors, and the Clerk of 
said Court shall immediately issue to the Sheriff a venire containing the 
names of the persons thus drawn as petit jurors, which venire shall be 
returnable at such time as may be named by the said Court, and the per- 
sons so served shall be the jurors for said Court, and the law relating to 
the qualifications, drawing and summoning of jurors of the Circuit Court 
and Courts of General Sessions shall apply, except as is herein otherwise 
provided : Provided, That not more than eighteen persons shall be drawn 
and summoned to attend at the same time at any session of the County 
Court, unless the Court shall otherwise order. Jurors drawn and sum- 
moned shall appear and attend upon the sessions of the County Court for 
which summoned until excused or discharged by the Judge thereof : Pro- 
vided, That services as jurors in the County Court shall not be held to 
exempt a juror from services as such in the Circuit Court in the same 
year. That the Board of Jury Commissioners as constituted by law in said 
county, for the drawing of grand and petit jurors for the Circuit Court 
shall constitute the Board of Jury Commissioners for the drawing of 
grand and petit jurors to attend upon the sessions of the County Court 
and that the provisions of law applicable to drawing grand and petit jurors 



54 CODE OF CIVIL PROCEDURE 

in the Courts of General Sessions shall obtain and apply in criminal cases 
in the County Court. 
1920, XXXI, 794. 

(132) § 16. Clerk— Records.— The Clerk of the Circuit Court shall 
be ex officio Clerk of the County Court, and shall keep such calendars, 
minutes and records of the said County Court, and the cases pending 
therein, and attend and perform the duties as the Clerk thereof, as is 
required of him by law as Clerk of the Circuit Court and Courts of General 
Sessions. That the costs of the Clerk in civil cases in the County Court 
shall be the same as those allowed in similar cases in the Court of Com- 
mon Pleas. That the County Commissioners of said county shall provide 
all books necessary for keeping records of said Court. The Clerk shall 
receive five hundred ($500.00) dollars per annum in addition to the salary 
now paid him and shall be collected as his present salary is now collected. 

1920, XXXI, 794. 

(133) § 17. Sheriff. — The Sheriff of the county shall attend 
Lipon all sessions of the said County Court and shall be subject to the 
orders thereof, and shall execute the orders, writs and mandates of the 
said County Court as required by law of him in reference to the Circuit 
Court, and the Courts of General Sessions. That the costs and fees of the 
Sheriff in civil cases in the County Court shall be the same as those allowed 
in similar cases in the Court of Common Pleas. That the Sheriff of the 
county shall receive five hundred ($500.00) dollars per annum in addition 
to the salary now paid him and shall be collected as his present salary is 
now collected. 

1920, XXXI, 795. 

(134) § 18. Compensation of Jurors and Witnesses. — Jurors in at- 
tendance upon the sessions of the County Court shall receive as compen- 
sation for their services the same per diem and mileage as is allowed said 
jurors in the Circuit Court. Witnesses in attendance upon said County 
Court shall receive the same compensation as witnesses in attendance upon 
the Circuit Court. 

1920, XXXI, 795. 

(135) § 19. Judge — Appointment — Election of Successors — Compen- 
sation. — It shall be the duty of the Governor to appoint a resident at- 
torney at law of Greenville County Judge, who shall receive the largest 
number of votes at the time of the submission of this Act to the people for 
its approval, and who shall hold office until the next general election, and 
until his successor shall be appointed and qualified, and who shall be the 
presiding Judge of said County Court ; the said Judges of said Court shall 
possess all the powers in respect to preserving order or punishing for con- 
tempt of Court as now possessed by Circuit Judges. The term of office 
for the County Judge shall be four years from the date of the expiration 
of his predecessor's term. That at the next general election, and every 
alternate election thereafter, an election shall be had for County 
Judge, whose term of office shall be four years from the date of 
expiration of his predecessor's term of office or until his successor 



OF SOUTH CAROLINA 55 

has been elected and qualified. That the said County Judge, before enter- 
ing upon the duties if his office, shall take the same oath of office as re- 
quired by law for Circuit Judges, and shall be commissioned in the same 
manner as Circuit Judges. The salary of the County Judge shall 
be two thousand and five hundred ($2,500.00) dollars per annum, to be 
paid by the county in monthly installments; said Judge shall not charge 
on the facts, but declare the law only. All vacancies in the office of County 
Judge shall be filled by appointment by the Governor, such appointee hold- 
ing for the unexpired term of his predecessors. In case of absence or in- 
ability of the County Judge, at the time fixed for holding any term of said 
Court, the Governor may appoint some other suitable person, being an 
attorney at law, to hold said term of Court as special County Judge. The 
County Judge, as provided for in this Section, shall not be allowed to 
practice law in any Court in Greenville County, but may practice in the 
Probate Court and Supreme Court : Provided, That no Judge of the 
County Court shall appear as counsel for any one in any case transferred 
from the said County Court to the Court of Common Pleas, where he has 
been of counsel or where he is interested in the case, however remote. 
1920, XXXI, 79.5. 

(136) § 20. Bailiffs. — The said Judge of the County Court may 
appoint a sufficient number of bailiffs, not to exceed two, to attend upon 
the said Court, and be subject to the orders thereof. That the said bailiffs 
shall have the same power as constables of said county, and shall receive as 
compensation two ($2.00) dollars per day for time actually engaged and 
shall not be retained in attendance upon the Court longer than the exi- 
gencies of the Court may require. 

1920, XXXI, 796. 

(137) § 21. stenographer. — The said County Judge shall appoint 
for the said County Court an official Stenographer, who shall attend upon 
the sessions of said Court and perform the same duties in connection there- 
with as are performed by the circuit stenographer in the Circuit Court. 
That the said Stenographer shall receive from the said county the salary 
of one thousand ($1,000.00) dollars per annum, to be paid by the county 
in monthly installments, and in addition such fees as provided by law for 
stenographers in the Circuit Court and Courts of General Sessions. 

1920, XXXI, 796. 

(138) § 22. Costs and Fees. — All costs and disbursements allowed 
the prevailing party, and all costs and fees allowed officers of Court in 
actions in the Court of Common Pleas shall be allowed in actions in this 
Court. 

1920, XXXI, 796. 

(139) § 23. Duty of County Commissioners. — The County Com- 
missioners of Greenville County shall make provisions for holding the ses- 
sions of said County Court. 

1920, XXXI, 796. 



56 CODE OF CIVIL PROCEDURE 

GREENWOOD COUNTY. 

(140) § 1. County Court in and for Greenwood County. — A majority 
of tlie qualified electors of the County of Greenwood having voted 
at the general election of 1920 in favor of the establishment of a County 
Court in and for said county, as provided by the Act of the General As- 
sembly approved March 12, 1920, a County Court is established in and 
for said county in pursuance of the said Act of the General Assembly, with 
such jurisdiction as is hereinafter provided. 

1920, XXXI, SS2. 

(141) § 2. Jurisdiction — Appeals from Magistrates' Courts. — The 

said County Court shall have concurrent jurisdiction with the Court of 
Common Pleas in all civil cases, and said proceedings both at law and in 
equity where the amount demanded in the complaint does not exceed 
$3,000.00, or where the amount involved or the amount of the property in 
controversy does not exceed the sum of three thousand ($3,000.00) 
dollars, or where the said Court shall have exclusive jurisdiction to hear 
and determine all appeals in civil cases from judgments rendered by Mag- 
istrates' Courts, and the proceedings on such appeals shall be the same as 
now provided for appeals from said last named Courts to the Court of 
Common Pleas and General Sessions ; that the said County Court shall also 
have exclusive jurisdiction in all criminal cases except murder, man- 
slaughter, rape or attempt to rape, arson, common law burglary, 
bribery, perjury, riot, assault and battery, and larceny : Provided, 
It shall have concurrent jurisdiction with the Court of General 
Sessions in all cases of riot, assault and battery, and larceny ; and also con- 
current jurisdiction with Magistrates' Courts in all criminal cases, except 
such cases as may be exclusively within the jurisdiction of Magistrates' 
Courts. It shall also have jurisdiction to hear all appeals from Magistrates' 
Courts in criminal cases : Provided, That in such cases the right of appeal 
shall still exist from said Court to the Court of General Sessions. The pro- 
ceedingg on such appeals from the Magistrates' Courts shall be the same 
as is .now prescribed for appeal from said last named Courts to the Court 
of General Sessions. 

1920, XXXI, S83; 1921, XXXII, 52. 

(142) § 3. Court of Record — Seal — Presumption as to Validity of 
Proceedings. — The said County Court shall be a Court of Record 
and have a seal inscribed with the words : ' ' County Court of Greenwood 
County," and the same presumption in favor of its jurisdiction and the 
validity of its judgments and decrees shall hold as in the case of jurisdic- 
tion, judgments and decrees of the Circuit Courts. 

1920, XXXI, 883. 

(143) § 4. Laws as to Circuit Courts Applicable Unless Inconsistent 
— Entry of Judgments — Trials for Minor Offenses. — The general 
laws and statutory provisions applicable generally to the Circuit Courts of 
this State, and trial of cases therein, shall apply to said County Court and 
to the conduct and trial of cases therein where not inconsistent with this 
Act : Provided, That any judgment rendered, other than that upon the 



OF SOUTH CAROLINA 57 

verdict of a jury, may be entered upon the day of such rendition: And, 
provided, That in all criminal cases wherein the punishment does not 
exceed a fine of one hundred dollars and imprisonment for thirty days, 
the same shall be tried without presentment by a Grand Jury on in- 
formation filed by the County Solicitor. 
1920, XXXI, SS4. 

(144) § 5. Practice Similar to Circuit Courts — Docketing Cases. — 

The same forms of pleadings and the same rules of procedure, practice 
and evidence shall obtain in the County Court as is provided by law for 
the trial of civil and criminal cases in the Circuit Court where not incon- 
sistent with the provisions of this Chapter: Provided, That the pleadings 
or copies thereof in the cases for trial before the said County Court 
shall be filed in the office of the Clerk of Court, as now provided by law 
in the Circuit Court before six o'clock in the afternoon of the Wednesday 
preceding the first day of the next ensuing terms of the said County Court, 
and the Clerk shall forthwith enter the cases upon the appropriate calen- 
dar. 

1920, XXXI, 884. 

(145) § 6. Jury Trials. — Where a jury is required by law in the 
trial of causes, civil and criminal, in said Court, such jury shall consist 
of six persons. All criminal cases wherein the punishment does not exceed 
a fine of one hundred dollars or imprisonment for thirty days shall be 
tried before the County Judge without a jury unless a trial by jury is 
demanded by the accused. Such cases wherein a trial by jury is not so 
demanded shall be carried to the foot of the calendar, to await trial by 
the County Judge after the jury cases for the term have been disposed of. 
In all civil actions either party may demand a jury trial in all cases in which 
a trial by jury is granted of right under the Constitution and laws of this 
State, but such demand must be made on or before the first day of the 
term, or upon the call of the calendar on the first day of the term, and the 
failure to make such demand shall be a waiver of said right of trial by 
jury. 

1920, XXXI, 884. 

(146) § 7. Jurisdiction of Judge. — In all cases and special pro- 
ceedings within the jurisdiction of the County Court and pending therein, 
the Judge of the County Court shall have the same jurisdiction, both in 
open Court and at chambers, as is possessed by the Circuit Judges over 
cases pending in the Circuit Court over which they are presiding, or in the 
circuits in which they are residents : Provided, That said County Judge 
shall have the power to issue writs of habeas corpus in all cases and to 
grant bail, except in capital cases. 

1920, XXXI, 884. 

(147) § 8. Appeals. — In all civil actions and special proceed- 
ings of which said County Court shall have jurisdiction, the right of appeal 
shall be to the Supreme Court of the State, in the same manner and pur- 
suant to the same rules, practice and procedure as now govern appeals from 
Circuit Courts. That in all criminal cases in which said Court shall have 



58 CODE OF CIVIL PROCEDURE 

jurisdiction, the right of appeal shall be to the Court of General Sessions, 
in the same manner and pursuant to the same rules, practice and procedure 
as now govern appeals from Magistrates' Courts to the Court of General 
Sessions. 

1920, XXXI, 885. 

(148) § 9. Terms of County Court.— The County Court shall be held 
on the second Monday of January, March, May, July, September and 
November, and continue for such time as is necessary to dispose of the 
business before the Court : Provided, That said Court shall always be open 
for the transaction of such business as can be disposed of without a jury : 
And, provided, further, That each week which may be designated for jury 
trials shall be considered a term. 

1920, XXXI, 885. 

(149) § 10. — Jury Panels. — The Board of Jury Commissioners as 
constituted by law in said county for the drawing of the jurors for the 
Circuit Court shall constitute the Board of Jury Commissioners for the 
drawing of jurors to attend upon the sessions of the County Court, and 
such Commissioners shall, at least ten days before the convening of 
the Court, and after five days notice of such drawing from the 
jury box (whether the same has been previously drawn or not), draw a 
panel of petit jurors, and the Clerk of said Court shall immediately 
issue to the Sheriff a venire containing the names of the persons thus drawn 
as petit jurors, which venire shall be returnable at such times as may 
be named by the said Court, and the persons so served shall be the jurors 
for said Court, and the law relating to the qualification, drawing and 
summoning of jurors of the Circuit Court, shall apply, except as herein 
otherwise provided : Provided, That not more than eighteen persons shall 
be drawn and summoned to attend at the same time at any session of the 
County Court, unless the Court shall otherwise order. Jurors drawn and 
summoned shall appear and attend upon the sessions of the County Court 
for which summoned uhtil excused or discharged by the Judge thereof : 
Provided, That services as jurors in the County Court shall not be held to 
exempt a juror from services as such in the Circuit Court in the same year, 
nor shall a juror be required to serve in such County Court more than 
once in the same year : Provided, further, That plaintiff and defendant 
in a cause shall each be allowed to strike three jurors. 

1920, XXXI, 885. 

(150) § 11. Clerk of Court^Costs.— The Clerk of the Circuit 
Court shall be ex officio Clerk of the County Court, and shall keep such 
calendars, minutes and records of the said County Court, and the cases 
therein pending, and attend and perform the duties as the Clerk thereof, 
as is required of him by law as Clerk of the Circuit Court. That the 
costs and fees of the Clerk in civil cases in the County Court shall be 
the same as those allowed in similar cases in the Court of Common Pleas. 
That the County Commissioners of said county shall provide all books 
necessary for keeping records of said Court. 

1920, XXXI, 886. 



OF SOUTH CAROLINA 59 

(151) § 12. Sheriff— Rural Police— Fees.— The Sheriff and rural 
policeman of the county shall attend upon all sessions of the said 
County Court, and shall be subject to the orders thereof, and shall execute 
the orders, writs and mandates of the said County Court as required by 
law of them in reference to the Circuit Court. That the costs and fees of 
the Sheriff and rural policeman in civil cases in the County Court shall be 
the same as those allowed in similar cases in the Court of Common Pleas. 

1920, XXXI, 886. 

(152) § 13. Pay of Jurors and Witnesses. — Jurors in attendance upon 
the sessions of the County Court shall receive as compensation for their 
services the same per diem and mileage as is allowed said jurors in the 
Circuit Court. Witnesses in attendance upon the said County Court shall 
receive the same compensation as witnesses in attendance upon the Circuit 
Court. 

1920, XXXI, 886. 

(153) § 14. Appointment of Judge — Term — Compensation — It shall 
be the duty of the Governor to appoint a resident attorney at law of 
Greenwood County as County Judge of the said Court, this appointment 
to be made on the recommendation of the Greenwood County Bar Asso- 
ciation or a majority thereof, at a meeting to be held by the said Bar 
Association of which due notice shall be given to all the members thereof. 
The term of office of the said County Judge shall be four years and until 
his successor shall be appointed and qualify, and he shall be the presiding 
Judge of the said County Court. The term of office for the said County 
Judge shall be four years from the date of the expiration of his prede- 
cessor 's term ; that the said County Judge before entering upon the duties 
of his office shall take the same oath of office as required by law for Cir- 
cuit Judges, and shall be commissioned in the same manner as Cir- 
cuit Judges. The salary of the County Judge shall be twenty-four hun- 
dred dollars per annum, to be paid by the county in monthly installments. 
All vacancies in of&ce of County Judge shall be filled by appointment by 
the Governor, upon the recommendation of the Greenwood Bar Asso- 
ciation, such appointee holding for the unexpired term of his predecessor. 
In case of absence or inability of the County Judge at the time fixed for 
holding any term of said Court, or in case of disqualification for the trial 
of any case in said Court, the Governor may appoint some other suitable 
person, being an attorney at law, to hold said term of Court or try said 
special case, as special County Judge. The County Judge, as provided for 
in this Act, shall not be allowed to act as counsel in any case in Greenwood 
County. 

1920, XXXI, 886. 

(154) § 15. County Solicitor. — There shall be a County Solicitor 
to act as prosecuting officer for the said County Court, who shall be 
appointed by the Governor in the same manner as the County Judge is 
appointed, and whose term of office shall be the same as that of County 
Judge. He shall receive a salary of twelve hundred dollars per annum, 
payable in monthly installments by the county. Before entering upon 
the discharge of the duties of his office, he shall take the same oath re- 



60 CODE OF CIVIL PROCEDURE 

quired by law for Circuit Court Solicitors. In case of sickness, disability, 
or inability to serve for any reason, in any case, or at any term, the County 
Judge shall appoint some other attorney to serve in his place and he 
shall receive the same compensation for so serving as would have been 
received by the County Solicitor. It shall be the duty of the County Solic- 
itor to appear for and represent the State in all criminal cases tried 
in said Court; he shall prepare and hand out to the Grand Jury all such 
indictments as may be necessary; he shall also appear for and represent 
the State in all appeals from the County Court to the Court of General 
Sessions; he shall also appear for and represent the State in all appeals 
in criminal cases from the Magistrates' Courts to the County Court. On 
all appeals in criminal cases from the Court of General Sessions of 
Greenwood County to the Supreme Court, originating in the County Court, 
or the Magistrates' Courts of Greenwood County, the said County Solicitor 
shall aid the Circuit Court Solicitor in the preparation of the appeals, but , 
not in the argument in the Supreme Court. The said County Solicitor 
shall also advise with and aid the Grand Jury of the county in its duties, 
and also aid the Coroner in inquisitions. The said County Solicitor shall 
not practice law in criminal cases in the Magistrates' Courts of Green- 
wood County, nor shall he appear for the defense in any criminal case in 
the Court of General Sessions for Greenwood County. 
1920, XXXI, 887. 

(155) § 16. Duties of Magistrates. — The Magistrates of Greenwood 
County shall be, and they are hereby, required to send promptly to the 
Clerk of the Court all the papers in all criminal prosecutions in cases 
triable in said County Court, and they shall make bonds and recognizances 
of witnesses and defendants returnable to the next ensuing term of the 
said County Court; and the Clerk of Court shall at once notify the 
County Solicitor and turn the papers over to him after they are filed, so 
that he may prepare indictments. 

1920, XXXI. 888. 

(156) § 17. G-rand Jury. — The Grand Jury drawn for and serv- 
ing in the Court of General Sessions for Greenwood County at any time 
subsequent to the passage of this Act shall constitute the Grand Jury 
of the said Court, and shall so serve and act upon all necessarj' 
indictments in the said Court, and the said Grand Jury shall attend upon 
the sessions of the said County Court, except that where the Court of 
General Sessions shall meet in said county, the Grand Jury will not be 
required to attend the next ensuing term of the County Court, unless the 
attendance of the said Grand Jury shall be deemed necessary by the 
County Solicitor and they shall be so notified, but the County Solicitor 
shall appear at the regular terms of the Court of General Sessions and 
hand out indictments at that time to the Grand Jury, who shall return 
the proper bills. For such extra service the Grand Jury shall receive 
compensation at the same rate as is allowed by law in the Court of Gen- 
eral Sessions. Before entering upon the discharge of their duties in the 
said County Court, the said Grand Jurors shall take the same oath now 
required by law for service in the Court of General Sessions. 

1920, XXXI, 8.88; 1921, XXXII, .52. 



OF SOUTH CAROLINA 61 

(157) § 18. Trial of Civil Actions Before Judge. — In actions on 
the civil side of the Court in which reference to the Master may, under 
the law, now be necessary, said actions may be heard and. determined by 
the said County Judge, either in term time or at chambers, without refer- 
ring the same to the said Master, upon testimony taken before the said 
Judge. 

1920, XXXI, 8SS. 

(158) § 19. stenographer. — The said County Judge shall appoint 
for the said County Court an official Stenographer, who shall attend upon 
the sessions of the said Court and perform the same duties in connection 
therewith as are performed by the Circuit Stenographer in the Circuit 
Court. That the said Stenographer shall receive for his services a salary of 
seven dollars and fifty cents per day for the time actually engaged upon 
the sessions of the said Court, to be paid by the county, in addition to 
such fees as are provided by law for transcripts and typewriting cases. 

iri20, XXXI, 889. 

(159) § 20. Taxation of Costs. — All costs and disbursements al- 
lowed the prevailing party and all costs and fees allowed oflicers of Court 
in actions in the Court of Common Pleas, shall be allowed in actions in the 
County Court. 

1920, XXXI, 889. 

(160) § 21. County Commissioners to Provide Quarters. — The County 
Commissioners of Greenwood County shall make provisions for 
holding the sessions of the said County Court by setting apart suitable 
quarters in the Greenwood County Court House. 

1920, XXXI, 889. 

(161) § 22. Tax for Expenses. — A tax is hereby levied upon all 
the property taxable in the County of Greenwood for one-half mill for the 
purpose of defraying the expenses of the said County Court. 

1920, XXXI, 889. 

(162) § 23. Code Sections Applicable Unless Inconsistent. — That the 
provisions of Sections 89, 91 and 92 of Volume I of the Code of Laws 
of 1922, of the general law relating to County Courts, not inconsistent 
with the provisions of this Act be, and the same are hereby, made 
applicable to this Act. 

1921, XXXII. 52. 

CHAPTER IV. 
Probate Court. 

(163) § 1. Sessions. — A Court of Probate is hereby established 
in each of the several counties in this State, which shall hold a session on 
the first Monday in each month, at or near the Court House, and continue 
thereafter so long as the business may require. 

Civ. Pro., '12, § 39; Civ. Pro., '02, § 34; 1868; XIV, 76; 1869, XIV, 241; 1870, 
XIV, § 3.5. 



62 CODE OF CIVIL PROCEDURE 

(164) § 2. Court of Record— Clerk.— The Court of Probate shall be 
a Court of Record, and have a seal ; may appoint a Clerk, and may remove 
him at pleasure; and on failure of the Court to appoint such Clerk, the 
Judge of the Court shall perform all the duties of Clerk: Provided, That no 
person holding the office of Clerk of the Probate Court under and by vir- 
tue of the appointment of the Probate Judge of any county of this State, 
shall practice in such Court as an attorney or counsellor at law: Pro- 
vided, That in Anderson County, when so qualified, by appointment by 
the Probate Judge for said county, the Clerk may do and perform any 
and all of the duties appertaining to the office of his principal. The said 
Probate Judge for Anderson County may take such bond and security from 
his Clerk as he shall deem necessary to secure the faithful discharge of 
the duties of the appointment, but shall in all cases be answerable for 
the neglect of duty or misconduct in office of his Clerk. 

Civ. Pro., '12, § 40; Civ. Pro., '02, § 35; 1S70. XIV. 36; 1877. XVI. 2.^^J . IDIS, 
XXX, 833. 

Being a Court of Record, it is not an inferior Court within the limits of its Jurisdiction, 
which is large. Thomas v. Poole, 19 S. C. 323; Turner v. Malone, 24 S. C. 398; State v. 
Burnside, 33 S. C. 276, 11 S. E. 787. Facts appearing on its record cannot be attacked collaterally. 
Tederall v. Bouknight, 25 S. C. 275. 

The county where testatrix lived and owned real estate at the time of her death is the 
proper countv to bring an action for removal of one of her executors or to appoint a Receiver 
to complete the administration. Smith v. Heyward, 107 S. 0. 542 ; 93 S. E. 195. 

(165) § 3. Duties of Clerk.— The Clerk of the Court of Probate shall 
keep a true and fair record of each order, sentence, and decree of the Court, 
and of all other things proper to be recorded; and on the legal fees being 
paid, shall give true and attested copies of the files and proceedings of the 
Court. All copies so attested shall be legal evidence in the Courts of this 
State. 

Civ. Pro., '12, § 41 ; Civ. Pro., '02, § 36 ; 1870, XIV, § 37. 

(166) § 4. Jurisdiction of Judges. — Every Judge of Probate, in his 
county, shall have jurisdiction in all matters testamentary and of adminis- 
tration, in business appertaining to minors, and the allotment of dower, 
in cases of idiocy and lunacy, and of persons non compos mentis. 

Civ. Pro., '12, § 42 ; Civ. Pro., '02, § 37 ; 1870, XIV, § 38. 

As to matters testamentary : 

Phoenix Bridge Co. v. Castleberry, 131 Fed. 175, 176. 

What is the extent of such jurisdiction, conferred by the Constitution, has not been determined. 
Thomas v. Poole, 19 S. C. 323. 

It does not include action by restui que trust against his trustee for accounting, unless it 
involves matters testamentary. Poole v. Brown, 12 S. C. 556. 

Nor action of one legatee against another to recover money paid to her in excess of her 
share as found by decree of Probate Court. Miller v. Stark, 29 S. C. 325. 

In pvobatf- of wills the jurisdiction extends only vo its execution and not to it.-^ construction. 
Prater v. Whittle, 16 S. C. 40. " 

Letters testamentary cannot be granted to one as executor not nominated by the will. Blakely 
r. Frazier, 20 S. C. 144. 

Probate Court may settle an estate upon petition of the executors as being a matter testamentary. 
In re Covin Est., 20 S. C. 476. 

What are not cases of "matters testamentarv or of administration." Caldwell v. Little, 15 S. C. 
r36. 

As to matters of administration : 

Such jurisdiction does not embrace a case against administrator in his personal character 
for wrong done in course of administration. Roberts v. Jones, 10 S. C. 109. 

As to business of minors : 

What the extent of this jurisdiction has not been determined. Thomas v. Poole, 19 S. C. 323. 

It is Questionable whether it embraces proceedings by a ward having attained majority to 
compel his guardian to account. Waller v. Cresswell, 4 S. C. 355. 

Probate Court may appoint guardians ad litem for minors in causes in the Court of Common 
Pleas. Trapier v. Waldo, 16 S. C. 289. 

As to dower: 

The jurisdiction is concurrent with the jurisdiction of the Court of Common Pleas. Witte v. 
Clark, 17 S. C. 323. 



OF SOUTH CAROLINA 63 

(Such jurisdiction is not ousted because questions of facts are involved. Stevrart v. Blease, 
44 S. C. 37. Nor limited to cases where there is no dispute as to the right of dower or the 
title of the land. Tibbett v. Langley Man. Co., 12 S. C. 465. 

A.s to idiocy, lunacy and non foniinpox mentis. 

The .iurisdietion- is not exclusive, but is concurrent with that of Coiirt of Common Pleas. 
Walker v. Russel, 10 S. C. 82. But the Probate Court connot grant leave to traverse an in- 
quisition in lunacy: that can only be done in the Court of Common Pleas. Ih. 

Ascertaining claims against decedent's estate. Dvson v. Jones, 65 S. C. 308, 317, 43 S. E. 
667; Gaston v. Gaston. 80 S. C. 157, 61 S. E. 393. 

(167) § 5. In Relation to Guardians. — The Judge of Probate shall 
have jurisdiction in relation to the appointment and removal of guardians 
of minors, insane and idiotic persons, and persons non compos mentis, and 
in relation to the duties imposed by law on such guardians, and the man- 
agement and disposition of the estates of their wards. He shall exercise 
original jurisdiction in relation to trustees appointed by will. 

Civ. Pro., '12, § 4.3 ; Civ. Pro., '02, § 38 ; 1870. XIV, § 39 ; Con., Art. V, § 19. 

Question whether such .iurisdietion as to duties of guardians reaches the case where the 
ward is of age. Waller v. Cresswell, 4 S. C. 355. 

He has no .iurisdietion to appoint another trustee in place of deceased testamentary trustee. 
Thomas v. Poole, 19 S. C. 323. 

Duty of Probate Judge in case of .ieopardy to minors' estate to require new bond. Probate 
Court not inferior Court, but Court of independent and general jurisdiction of special subjects. 
Williams v. Weeks, 70 S. C. 4. 48 S. E. 619; Dunlap v. Bank, 69 S. C. 272, 48 S. E. 49. 

Does not expressly confer on Probate Court power to appoint guardian of persons or minors. 
Ex varte. Davidge. 72 S. C. 22, 51 S. E. 269. 

Jurisdiction of Probate Judge to grant administration upon estate of nonresident cannot be 
attacked in another proceeding unless record shows that greater part of estate was not in the 
county. Dunlap v. Savings Bank, 69 S. C. 272, 48 S. E. 49. 

(168) § 6. Administration and Probate of Wills. — The probate of the 
will and the granting of administration of the estate of any person de- 
ceased shall belong to the Judge of Probate for the county in which such 
person was last an inhabitant ; but if such person was not an inhabitant of 
this State, the same shall belong to the Judge of Probate in any county in 
which the greater part of his or her estate may be. 

Civ. Pro., '12, § 44; Civ. Pro., '02, § 39; 1870, XIY, § 40. 

Phoenix Bridge Co. v. Castleberry, 131 Fed. 175 

Jurisdiction cannot be attacked in another proceeding because the record does not show 
affirmatively that the greater part of decedent's estate was in such county, where record shows 
that the decedent had property in such county. Dunlap v. Savings Bank, 69 S. C. 270, 48 S. E. 49. 

(169) § 7. Settlement of Estate in County Where Will Proved— Sale 
of Real Estate. — All proceedings in relation to the settlement of the estate 
of any person deceased shall be had in the Probate Court of the county 
in which his will was proved or administration of estate was granted. And 
whenever it shall appear to the satisfaction of any Judge of Probate that 
the personal estate of any person deceased is insufficient for the payment 
of his debts, and all persons interested in such estate being first summoned 
before him, and showing no cause to the contrary, such Judge of Probate 
shall have power to order the sale of the real estate of such person de- 
ceased, or of so much thereof as maj^ be necessary for the payment of the 
debts of such deceased person, upon such terms and in such manner as 
he may think best; may grant orders of injunction to stay actions or pro- 
ceedings against the executors or administrators of such deceased person, 
and such other orders as may be necessary to secure the marshalling and 
administering the assets of such deceased person, such proceedings to be by 
summons and complaint, the practice wherein shall conform as nearly as 
may be to the form and practice in the Courts of Common Pleas of this 
State. 

Civ. Pro., '12, § 4.5 ; Civ. Pro., '02, § 40 ; 1870, XIV, § 41 ; 1873, XV 496. 



64 CODE OF CIVIL PROCEDURE 

The Constitution confers the .iurisdiction to make such sale of real estate. McNamee v. 
Waterbury, 4 S. C. 156. It is concurrent with the .iurisdiction of the Court of Common 
Pleas m such cases. Jordan v. Moses, 10 S. C. 431. Either in an action by a creditor for 
that purpose. Finley v. Robertson, 17 S. C. 435; Scruggs v. Foot, 19 S. C. 274. But not until 
the will has been probated or letters of administration granted. Whitesides v: Barber, 24 S. C. 
378. Or in such action by the personal representative. McNamee v. Waterbury, 4 S. C. 156; 
Shaw V. Barksdale, 25 S. C. 204. The Probate Judge must determine the necessity of such 
sale. Hodge v. Fabian, 31 S. C. 212, 9 S. E. 820. His decree directing the sale of more land 
than necessary for the purpose cannot be questioned in the Court of Common Pleas. lb. Nor can 
he be controlled by mandarmi.s from that Court in making such sales or executing titles. Burnett 
r. Eurnside, 33 S. C. 276, 11 S. E. 787. He can determine the validity of an alleged deed under 
which one of defendants claim title from intestate. Gregory v. Rhoden, 24 S. 0. 90. He 
can only sell the interest of the deceased in the land, not the rights of the parties to the action 
therein as heirs of another party. McLaurin v. Rion, 24 S. C. 411. Cannot sell as land of 
deceased land surrendered to distributees of deceased bv his mortgagor. Harrison v. Lightsey, 
32 S. C. 298, 10 S. E. 1010. 

Court of Common Pleas has concurrent jurisdiction with the Probate Court of an action 
against an administrator for account, and the Court first acquiring jurisdiction should retain it. 
Epperson v. Jackson. 88 S. C. 157, 65 S. C. 217. 

Probate Court has jurisdiction to sell real estate in aid of assets, and may marshal and 
administer the assets of a decedent. Dyson v. Jones, 65 S. C. 808, 318, 43 S. E. 667. 

Phcenix Bridge Co. v. Castleberry, 131 Fed. 175 

Probate Court, first obtaining jurisdiction, is the proper Court in which to bring an action 
against the personal representative of an executor on an accounting of funds in his hands 
belonging to the estate, although the executor died in another jurisdiction. F-ench v, Way, 93 
S. C. 522; 76 S. E. 617. 

(170) § 8. Certain Probate Notices or Citations Not Required to Be 
Published. — It shall not be necessary to publish in any newspaper, any 
notice or citation relating to any estate in the Courts of Probate, where the 
value of such estate or estates, does not exceed two hundred dollars : Pro- 
vided, That in such cases the notices required by law shall be posted at 
the door of the Court House of the county where such estate or estates 
may be situated, for the time required by law. 

Civ. Pro., '12, § 46; XX, 1911, XXVIII, 135. 

(171) § 9. When to Grant Discharge to Administrators, Etc. — It 

shall not be lawful for any Judge of Probate in this State to grant a final 
discharge to any executor, administrator, trustee, guardian, or committee, 
unless such executor, administrator, trustee, guardian or committee shall 
have finally accounted for the estate in his hands, and have given notice 
in a newspaper of the county (if there be no newspaper published in the 
county, then in some newspaper having the greatest circulation therein) 
for the space of at least one month, that on a day certain application will 
be made to the said Judge of Probate for a final discharge. No such dis- 
charge shall affect any distributee, legatee, cestui que trust, ward, or 
lunatic, who has not been made a party to such application, either by per- 
sonal service of the notice, or by publication in the mode provided for 
absent defendants. 

Civ. Pro., '12, § 47; Civ. Pro., '02, § 41; 1869, XIV, 263, § 1; 1894, XXI, 719. 

The provisions of this Section and of §§ 178, 179 and 220 were only intended to prescribe 
the limits of the jurisdiction of the Probate Court as between themselves, and not to limit that 
of the Court of Common Pleas. Jordan v. Moses, 10 S. 0. 431. 

"At least one month" means calendar month. Brock v. Kirkpatrick, 72 S. C. 492, 52 S. E. 592. 

(172) § 10. Proceedings Relative to Estates Under Guardianship. 

— All proceedings in relation to the property or estate of any person under 
guardianship shall be had in the Court of Probate of the county in which 
the guardian was appointed. 

Civ. Pre, '12, § 48; Civ. Pro., '02, § 42; 1870, XIV, § 42. 

(173) § 11. Judges Not to Act When Interested— When Judges of 
Adjoining County to Act.— No Judge of Probate shall act as such in the 
settlement of any estate wherein he is interested as heir or legatee, executor 



OF SOUTH CAROLINA 65 

or administrator, or as guardian or trustee of any person ; in every such 
case the Judge of Probate of any adjoining county shall have jurisdiction, 
and it shall be his duty, upon application, to attend at some term of the 
Court of Probate in which such case may be pending, which shall not in- 
terfere with the duties of his own county, and hear and determine such 
case. 

Civ. Pro., '12, § 49 ; Civ. Pro., '02, § 43 ; 1870, XIV, § 43. 

In re Estate of Hears, 75 S. C. 483 56 S. E. 7, 9 Am. & Eng. Ann. Cas. 960. 

(174) § 12. Power to Administer Oath. — The Judge or Clerk of the 
Probate Court shall have power to administer all oaths necessary in the 
transaction of business before the Probate Court, and all oaths required by 
law to be administered to persons executing trusts under the appoint- 
ment of said Court. 

Civ. Pro. '12, § 50; Civ. Pro., '02, § 44; 1870, XIV, § 44. 

(175) § 13. Probate Court May Issue Warrants and Processes. — Pro- 
bate Courts may issue all warrants and processes, in conformity to the rules 
of law, which may be necessary to compel the attendance of witnesses, or 
to carry into effect any order, sentence, or decree of such Courts, or the 
powers granted them by law. 

Civ. Pro., '12, § 51 ; Civ. Pro., '02, § 45 ; 1870, XIV, § 45. 

(176) § 14. In Cases of Contumacy, May Commit to Jail. — If any per- 
son shall refuse or neglect to perform any lawful order, sentence, or decree 
of a Probate Court, such Court may issue a warrant, directed to any Sheriff 
or Constable in the State, requiring him to apprehend and imprison such 
person in the common jail of the county, and if there be no jail in the 
county, then in the jail of the adjoining county, until he shall perform 
such order, sentence or decree, or be delivered by due course of law. 

Civ. Pro., '12, § 52; Civ. Pro., '02, § 46; 1870, XIV, § 46. 

(177) § 15. When Depositions May Be Taken and Used. — When a 

witness whose testimony is necessary to be used before any Probate Court 
shall reside out of this State, or out of the county where said Court is 
holden, or more than thirty miles from the county seat or by reason of 
age or bodily infirmity, shall be unable to attend in person, the Court may 
issue a commission to one or more competent persons to take the testi- 
mony of such witness ; and depositions taken according to the provisions 
of the law for taking depositions to be used on the trial of civil causes may 
be used on the trial of any question before the Probate Court where such 
testimony may be proper. 

Civ. Pro., '12, § 53 ; Civ. Pro., '02, § 47 ; 1870, XIV, § 47. 

(178) § 16. Exclusive Jurisdiction After Once Acquired. — When any 
Probate Court shall have first taken cognizance of the settlement of the 
estate of a deceased person, such Court shall have jurisdiction of the dis- 
position and settlement of all the personal estate of such deceased person 
to the exclusion of all other Probate Courts. 

Civ. Pro., '12, § 54; Civ. Pro., '02, § 48; 1870, XIV, § 48. 
Jordan v. Moses, 10 S. C. 431. 

6 C C P 



66 CODE OF CIVIL PROCEDURE 

Grant of letters of administration is taking cognizance of the settlement of the estate, and 
is the first act that can be properly so considered. Phcenix Bridge Co. v. Castleberry, 131 
Fed. 1Y5, 178. 

Probate Court has .iurisdiction of a personal representative of an executor of whom the 
court had first obtained jurisdiction, although the executor died in another jurisdiction. French 
V. Way, 93 S. C. 522; 76 S. E. 617. 

(179) § 17. Jurisdiction Not to Be Collaterally Impejaohed. — The 

jurisdiction assumed by any Probate Court in any case, so far as it de- 
pends on the place of residence or the location of the estate, shall not be 
contested in any suit or proceeding whatever, except in an appeal from the 
Probate Court in the original case, or when the want of jurisdictiton ap- 
pears on the record. 

Civ. Pro., '12, § 55 ; Civ. Pro., '02, § 49 ; 1870, XIV, § 49. 

Jordan v. Moses, 10 S. C. 431; Dunlap v. Savings Bank, 69 S. C. 272, 48 S. E. 49; 
Phoenix Bridge Co. v. Castleberry, 131 Fed. 175. 

(180) § 18. When Minor May Oh'^ose Gruardian — Guardian Inter- 
ested — Where Appointed. — When, by law, a guardian is required to be 
appointed of a minor, who is interested as heir or legatee, or representative 
of such heir or legatee, in any estate which is in a course of settlement, 
such guardian shall be appointed by the Probate Court before which such 
estate is in course of settlement; but afterwards, if the minor shall reside 
in another county, and is of the age of fourteen years, he may choose and 
have a guardian appointed in the county where he shall reside; and in 
that case the powers of the former guardian shall cease, and to such pro- 
ceedings he shall be made a party. In all other cases, guardians shall be 
appointed by the Probate Court of the county where the persons for whom 
the guardian shall be appointed shall reside. 

Civ. Pro., '12, § 56; Civ. Pro., '02, § 50; 1870, XIV, § 50. 

(181) § 19. Authorized to Permit Sale and Settle Accounts of Gruard- 
ian. — The Probate Court by which a guardian shall be appointed shall 
have jurisdiction of the estate of the ward, and shall be alone authorized to 
permit the sale of such estate, and settle such guardian's accounts. 

Civ. Pro., '12, § 57 ; Civ. Pro., '02, § 51 ; 1870, XIV, § 51. 

Duty of Probate Judge in case of .jeopardy to minor's estate to require new bond. Probate 
Court not inferior court, but court of independent and general jurisdiction of special subjects. 
Williams v. Weeks, 70 S. C. 4, 48 S. E. 619. 

(182) § 20. Judg^es May Appoint Times and Places for Holding 
Courts. — Except as provided in Section 1 of this Chapter, the Probate 
Court in each county shall appoint such times and places for holding 
Courts, or for hearing any special matter, as shall be judged most con- 
venient for all persons interested, and shall give notice of such times and 
places to the parties interested. 

Civ. Pro., '12, § 58 ; Civ. Pro., '02, § 52 ; 1870, XIV, § 52 ; 1873, XV, 496. 

(183) § 21. Open at All Times for Certain Business. — The Probate 
Court shall be deemed open at all times for the transaction of ordinary busi- 
ness which may be necessary, when previous notice is not required to be 
given to the persons interested. 

Civ. Pro., '12, § 59; Civ. Pro., '02, § 53; 1870, XIV, § 53. 

(184) § 22. Adjournment of Courl^-When by Clerk.— A Probate 
Court may be adjourned as occasion may require ; and when the Judge is 
absent at the time for holding a Court, the Clerk may adjourn it. 

Civ. Pro., '12, § 60; Cii'. Pro., '02, § 54; 1870, XIV, § 54. 



OF SOUTH CAROLINA 67 

(185) § 23. Appellate Jurisdiction of Circuit Court. — The Circuit 
Court shall have api)ellate jurisdictiou of all matters originally within the 
jurisdiction of the Probate Court. 

Civ. I'ro., '12, § 61; Civ. Pro., '02, § 55; 1S70, XIV, § 55. 

The hearing by the Circuit Court is strictly on appeal, limiting the presiding Judge to a 
review of, and judKinent on, the evidence taken below, except as to question of fact to be 
decided by jury under § 190. Stewart v. Blease, 4 S. C. 44; Stark v, Hopson, 22 S. C. 42; 
Ex parte White, 33 S. C. 442, 12 S. E. 5. Findings of fact by Probate Court ought not to be 
disturbed unless clearly erroneous. Gunning v. Erwin, 13 S. C. 3 7. But Circuit Judge may 
remand the cause or any particular issue therein to the Probate Court, with instructions to take 
further testimony and report the same. Twitty v. Houser, 7 S. C. 153. On appeal the Circuit 
Court reviews findings of fact. Thames v. Rouse, 82 S. C. 40, 62 S. E. 254; Ex parte Small, 
69 S. C. 46, 48 S. C. 40. Concurrent jurisdiction of Circuit Court. Epperson v. Jackson, 
83 S. C. 158, 65 S. E. 217. 

Probate of will in Probate Court is a law case, and findings by Circuit Judge on appeal from 
Probate Court in such case are not reviewable here. In re Solomon's Estate, 74 S. C. 189, 
54 S. E. 207. 

(186) § 24. Jurisdiction of Supreme Court in Probate Matters. — The 

Supreme Court shall have jurisdiction of all questions of law arising in 
the course of the proceedings of the Circuit Court, in probate matters, in 
the same manner as provided by law in other cases. 
Civ. Pro., '12, § 62 ; Civ. Pro., '02, § 56 ; 1870, XIV, § 56. 

Supreme Court, on appeals in such matters, may refer an issue of fact to a jury. Shaw v. 
Cunningham, 9 S. C. 271. It will not disturb concurrent findings of fact by Probate Judge 
and Circuit Judge. Black v. White, 13 S. C. 37. An order of Circuit Court, without hearing 
appeal, remanding the case to Probate Judge for further hearing, with leave to take further 
testimony, is appealable. Ex varte White, 33 S. C. 442, 12 S. E. 5. 

Supreme Court cannot review findings of Circuit Court as to "will" or "no will." Thames v. 
Rouse, 82 S. C. 42, 62 S. E. 254. 

(187) § 25. Appeal to Circuit Court to Be Taken Within Fifteen 
Days. — Any person interested in any final order, sentence, or decree of 
any Probate Court, and considering himself injured thereby, may appeal 
therefrom to the Circuit Court in the same county, at the stated session 
next after such appeal. The grounds of appeal shall be filed in the office 
of the Probate Court, and a copy thereof served on the adverse party, 
within fifteen days after notice of the decision appealed from. 

Civ. Pro., '12, § 63 ; Civ. Pro., '02, § 57 ; 1870, XIV, § 57 ; 1839, XI, 60, § 13. 

The only parties who can appeal are parties to the cause. Witte v. Clarke, 17 S. C. 313. 
A decree refusing appeal because it was not taken in time is appealable. Henderson v. Wyatt, 
8 S. C. 112. 

On appeal to Circuit Court from order disallowing claim, appellant is not entitled, of right, 
to trial by jury. Hughes v. Kirkpatrick, 37 S. C. 161, 15 S. E. 912. Filing transcript of 
record to perfect appeal. Davenport v. Davenport, 61 S. C. 389, 39 S. E. 548. Appeal by 
warrantor from order making him a party, prior to judgment, premature. Robertson v. Curlee, 
59 S. C. 454, 38 S. E. 116. Person adjudged non compos mentis may appeal. Ex parte 
Gregory, 58 S. C. 114, 36 S. E. 433. 

Order granting letters is final and is appealable. Ex parte Small, 69 S. C. 46, 48 S. E. 40; 
Watsoj V. Pollitzer, 72 S. C. 387, 51 S. E. 914. 

The Probate Judge, having acquired jurisdiction by proper application for Letters of Ad- 
ministration after citation, may have the right to revoke it, even after notice of appeal is 
given, where the appeal was withdrawn, unless the record itself shows that the return had been 
filed in the Court of Common Pleas. Ex parte Jones, 102 S. C. 110; 86 S. E. 203. 

(188) § 26. Certified Copies of Record to Be Filed in Circuit Court. 

— The person appealing shall procure and file in the Circuit Court to 
which such appeal is taken a certified copy of the record of the proceed- 
ings appealed from, and of the grounds of the appeal filed in the Probate 
Court, together with the proper evidence that notice has been given the 
adverse party according to law. 

Civ. Pro., '12, § 64 ; Civ. Pro., '02, § 58 ; 1870, XIV, § 60. 

Watson V. Pollitzer, 72 S. C. 388, 51 S. E. 914. 

(189) § 27. Pro'ceedings Stayed by Appeal. — ^When an appeal, ac- 
cording to law, is taken from any sentence or decree of the Probate Court, 
all proceedings in pursuance of the order, sentence, or decree appealed 



68 CODE OF CIVIL PROCEDURE 

from, shall cease until the judgment of the Circuit or Supreme Court is 
had; but if the appellant in writing waives his appeal before the entry of 
such judgment, proceedings may be had in the Probate Court as if no 
appeal had been taken. 

Civ. Pro., '12, § 65; Civ. Pro., '02, § 59; 1870, XIV, § 61. 

Probate Court cannot grant administration during pending of appeal from its judgment 
on question of "will" or "no will." In re Estate of Seay, 63 S. C. 130, 41 S. E. 17. 

(190) § 28. How Circuit Court May Proceed to Trial.— When such 
certified copy shall have been filed in the Circuit Court, such Court shall 
proceed to the trial and determination of the question, according to the 
rules of law ; and if there shall be any question of fact or title to land 
to be decided, issue may be joined thereon under the direction of the Court, 
and a trial thereof had by jury. 

Civ. Pro., '12, § 66 ; Civ. Pro., '02, § 60 ; 1870, XIV, § 62. 

"According to the rules of law" construed to mean "according to the rules regulating the 
hearing of appeals." Ex parte White, 33 S. C. 442, 12 S. E. 5. 

What constitutes the return to the Circuit Court. Davenport v. Davenport, 61 S. C. 389, 39 
S. E. 548. 

All issues of fact involved in such appeal must be determined de novo by the Circuit Judge, 
except such issues as are triable by jury under § 533 — 6 s. d. 5 and except such issues as 
may be referred to jury under Rule 28 of Circuit Court; and it is fatal error to so refer 
such issues without notice to appellant. Stewart v. Blease, 4 S. C. 37; Luchen v. Wichman. 
5 S. C. 411; Prater v. Whipple, 16 S. C. 40: Rollins v. Whipper, 17 S. C. 32; Ex parte 
White, 33 S. C. 442, 12 S. E. 5: In re Shier's Estate, 35 S. C. 417, 14 S. E. 931. 

On appeal from order disallowing claim against estate appellant is not entitled as of right 
to trial by jury. Hughes v. Kirkpatrick, 37 S. C. 161, 15 S. E. 912. 

It is proper practice to try de novo issue of will or no will in Circuit Court on appeal from 
Probate Court. Ex parte Jackson, 67 S. C. 55, 45 S. E. 132. 

Construed. Watson v. Pollitzer. 72 S. O. 388, 51 S. E. 914. 

On appeal from Probate Court, Circuit Court may submit issue to jury for trial. Ex parte 
Gantt. 75 S. C. 368. 55 S. E. 892. 

On appeal from Probate Court rejecting a Will grounds of appeal make the issues and if 
either party desire a jury, notice within ten days after the service of the exceptions, as in 
■rule 28 of Circuit Court, should be given. Mier v. Kornahrens, 113 S. 0. 275: 102 S. E. 285. 

(191) § 29. Appellant Neglecting to Enter Appeal Judgment Af- 
firmed With Costs. — If the person appealing from the proceedings of the 
Probate Court, as provided in this Title, shall neglect to enter his appeal, 
the Circuit Court to which such appeal shall be taken, on motion, and pro- 
ducing attested copies of such appeal by the adverse party, shall affirm the 
proceedings appealed from, and may allow costs against the appellant. 

Civ. Pro., '12, § 67; Civ. Pro., '02, § 61; 1870, XIV, § 64. 

Watson V. Pollitzer. 72 S. C. 388, 51 S. E. 914. 

(192) § 30. Final Decision to Be Certified to Probate Court.— The 

final decision and judgment in cases appealed, as hereinbefore provided, 
shall be certified to the Probate Court hy the Circuit Court or Supreme 
Court, as the case may be, and the same proceedings shall be had in the 
Probate Court as though such decision had been made in such Probate 
Court. 
Civ. Pro., '12, § 68 ; Civ. Pro., '02, § 62 ; 1870, XIV, § 65. 

That Circuit order affirming judgment of Probate Court has not been certified to Probate 
Court not ground for reversal. Watson v. Pollitzer, 72 S. C. 388, 51 S. E. 914. 

(193) § 31. Probate Judge No Voice in Determining Appeal — When 
May Practice Law. — No Judge of any Probate Court shall be admitted to 
have any voice in judging or determining any appeal from his decision, or 
be permitted to act as attorney or counsel thereon,, or receive fees as 
counsel in any matter pending in the Probate Court of which he is 
judge ; Provided, It shall be lawful for Judges of Probate to practice law 



OF SOUTH CAROLINA 69 

in other Courts in such cases are as not cognizable in the Courts of Pro- ' 
bate. 

Civ. Pro., '12, § 69; Civ. Pro., '02, § 63; 1870, XIV, § 66. 

(194) § 32. Proceedings May Be Commenced by Petition. — Proceed- 
ings in the Court of Probate may be commenced by petition to the Judge 
of Probate for the county to which the jurisdiction of the subject matter 
belongs, or b}^ complaint, briefly setting forth the facts or grounds of the 
application. A summons shall be issued to the defendants in such pro- 
ceedings, wherein the manner of service, time for answering, and other 
proceedings relating to the trial (except trial by jury), shall conform as 
nearly as may be to the practice in the Courts of Common Pleas as pro- 
vided in this Code of Procedure. 

Civ. Pro., '12, § 70; Civ. Pro., '02, § 64; 1S70, XIV, § 67. 
Ex varte Conrad, 75 S. C. 1, 54 S. E. 799. 

(195) § 33. Supreme Court to Make Rules — County Commissioners 
to Provide Furniture, Etc., for Office. — The Supreme Court may, from 
time to time, make rules regulating the practice and conducting the busi- 
ness in the Courts of Probate, in all cases not expressly provided for by 
law; and the County Commissioners of each county shall provide all books 
necessary for keeping the records of such Court ; also a seal and necessary 
office furniture : Provided, Said furniture shall not exceed in cost the sum 
of one hundred dollars. 

Civ. Pro., '12, § 71; Civ. Pro., '02, § 65; 1870, XIV, § 68. 

(196) § 34. May Punish for Contempt. — The Judge may keep order 
in Court, and punish any contempt of his authority in like manner as such 
contempt might be punished in the Circuit or Supreme Court. 

Civ. Pro., '12, § 72 ; Civ. Pro., '02, § 66 ; 1870, XIV, § 69. 

(197) § 35. EmroUment of Decrees. — Any party in whose favor an 
order or decree for the payment of money may be made by a Court of Pro- 
bate, may cause such order or decree to be enrolled at any time within one 
year after making the same, and for that purpose shall prepare and deliver 
to the Judge of Probate a brief or abstract, setting forth the title of the 
proceedings wherein such order or decree was made, the parties thereto, 
and the date when the same was made ; also the date of the said order and 
the names of the parties bound thereby, together with such other par- 
ticulars as may be necessary to identify the said order with the proceed- 
ings, and to exhibit the grounds for making the same and the operation and 
effect thereof ; and the Judge of Probate shall annex thereto the said order 
or decree, or an exact copy thereof, certified by him, together with the 
time when the same was made and entered ; and shall endorse on the record 
the day of the month and year when the brief or abstract was lodged in 
his office, and shall deposit the same in a case in his office with the records 
pertaining to the cause. And no order or decree of any Court of Probate 
for the payment of money shall, as to third persons, without express notice, 
have any effect as a lien on the real estate of the person intended to be 
bound thereby but from the day when the said brief or abstract shall have 
been' delivered to or lodged with the said Judge of Probate as aforesaid. 



70 CODE OF CIVIL PROCEDURE 

and a transcript of the docket thereof in the index of money decrees here- 
inafter prescribed has been filed in the office of the Clerk of the Court of 
Common Pleas for the same county and duly entered by said Clerk 
on the calendar of judgments kept in his office. Nor shall such order 
or decree rank as a judgment against the estate of any person deceased, 
unless such abstract was duly filed and indexed, and a transcript of the 
entry in the index filed with the Clerk of the Circuit Court for the same 
County and duly docketed by the said Clerk on the calendar of judgments 
of the Court of Common Pleas before the death of such deceased person; 
except that the lien of decrees and orders for the payment of money made 
prior to December 20, 1878, shall not be affected; and after the transcript 
of the docket in the index of money decrees has been duly entered upon the 
calendar of judgments kept in the office of the Clerk of the Court of Com- 
mon Pleas, such order or decree shall have like force and effect as judg- 
ments of the Courts of Common Pleas : Provided, That such enrollment of 
any order or decree for the payment of money shall not deprive any party 
thereto of the right to appeal therefrom; but when notice of such appeal 
shall be duly given, execution upon the said order or decree, issued as 
herein provided, shall be lodged to bind only, and shall not be enforced 
until such appeal shall have been dismissed; and if such order or decree 
shall be reversed, set aside, or modified on appeal, the enrollment thereof 
shall be amended or wholly vacated accordingly. 
Civ. Pro., '12, § 73; Civ. Pro., '02, § 67; 1S78, XVI, 710. 

Probate Judge cannot arrest and imprison an administrator for failure to comply with the 
terms of a money decree. Gilliam v. McJiinkin, 2 S. C. 442. Judgment for claim against 
executor is vrima facie evidence against devisees. Brock v. Kirkpatrick, 72 S. C. 491, 500, 
52 S. C. 592. 

(198) § 36. To Keep Index of Decrees Enrolled.— Every Judge of 
Probate shall provide and keep in his office an index of money decrees, in 
which every enrolled order or decree for the payment of money shall be 
entered, with the names of every party or estate bound thereby, alphabet- 
ically arranged, together with the names of the parties plaintiff, and (be- 
sides the title of the package in which the order or decree is contained and, 
the number in the package) shall exhibit the amount ordered to be paid, 
the costs (if any), date of enrollment, date of execution, and date of satis- 
faction, where satisfaction has been entered. Said book shall be of con- 
venient size, of durable paper, and well bound, and the expense of provid- 
ing the same shall be defrayed by the County Commissioners of the re- 
spective counties. 

Civ. Pro., '12, § 74 ; Civ. Pro.,- '02, § 68 ; 1878, XVI, 711. 

Brock V. Kirkpatrick, 72 S. C. 491, 500, 52 S. E. 592. 

(199) § 37. Empowered to Issue Executions. — Judges of the Probate 
Court are authorized and empowered to issue executions against property, 
when such process is necessary to carry into effect any order, sentence, or 
decree of such Court, or for costs accruing therein. And they may issue 
executions against property in their respective counties, to enforce decrees 
from the Probate Courts of other counties, upon a transcript of.such decree, 
and certificate of enrollment of the same, being filed in the office of the 
Probate Court from which such execution is to issue, and also in the pffice 
of the Clerk of the Court of Common Pleas for the county in which it is 



OF SOUTH CAKOLINA 7,1 

to issue. But no execution shall be issued by any Judge of Probate to en- 
force the collection of money under any order or decree of a Court of Pro- 
bate until an abstract or brief has been prepared and filed according to 
the direction of Section 35 of this Chapter and the proper minute thereof 
has been entered in the index of money decrees, and the proper transcript 
of such minute has been filed in the office of the Circuit Court for the 
same county and entered upon the calendar of judgments of the Court 
of Common Pleas kept in his office. And when any such execution has 
been duly returned satisfied to the office of the Judge of Probate from 
whence it issued it shall be the duty of the Judge of such Court of 
Probate to have such satisfaction recorded upon the proper transcript 
in the office of the Clerk of the Circuit Court and entered upon the 
docket thereof on the calendar of judgments of the Court of Common 
Pleas kept in said Clerk's office. When no form of warrant or process 
is prescribed by statute or rules of Court the Probate Judge shall frame 
one in conformity to the rules of law and the usual course of proceedings 
in this State. Any Sheriff or Constable in this State shall execute the 
orders or process of said Court in the same manner as the orders or 
process of the Circuit or Supreme Courts. 

Civ. Pro., '12, § 75 ; Civ. Pro., '02, § 69 ; 1870, XIV, § 71 ; 1S72, XV, 23 ; 1878, XVI, 
458. 

Brock V. Kirkpatriek, 72 S. C. 495, 52 S. C. 592. 

(200) § 38. Judge May Commit Lunatics, Etc., to State Hospital for 
Insane. — The Judge of the Probate Court may commit to the State Hos- 
pital for the Insane any idiot, lunatic, or person non compos mentis, who, 
after due examination, may be found to be so furiously mad as to render 
it manifestly dangerous to the peace and safety of the community that 
such person should be at large ; and also in all such other eases provided by 
law. In all cases the Judge shall certify in what place such person resided 
at the time of the commitment, and such certificate shall be conclusive evi- 
dence of such residence. 

Civ. Pro., '12, § 76; Civ. Pro., '02, § 70; 1870, XIV, § 72. 

(201) § 39. Duties and Powers of Probate Court in Relation to 
Minors Enlarged and Defined. — Whenever a petition shall be presented 
to the Probate Court, supported by affidavits, either on knowledge or 
on information and belief, that any child within its jurisdiction under 
the age of eighteen years is destitute or homeless, or is a beggar, or whose 
home, by reason of cruelty, neglect or depravity on the part of its 
parents, or other person in whose care it may be, is an unfit place for 
such child, or that any child is being required to work contrary to law, or 
in an unreasonable degree, the conditions and circumstances of the parents 
or person with whom it resides being considered; or is incorrigibly mis- 
chievous or vicious, or is a persistent truant from school, or habitually asso- 
ciates with criminals or vicious or immoral persons, or is growing up in 
ignorance or idleness, or is in imminent danger of becoming vicious or 
criminal ; or whenever a report is made to the Probate Court by an officer 
of the law, as hereinafter provided, that any child under the age of eighteen 
years is liable to arrest or has been arrested for a violation of law, the said 



72 CODE OF CIVIL PROCEDURE 

Probate Court shall issue a summons to the child and to its parent or par- 
ents or person with whom it resides, or in case of a child under arrest, to 
the officer in whose custody he then is, also to show cause why the supervi- 
sion, care or custody of the said child should not be assumed by that Court. 
Such summons shall be returnable within three days from the date of ser- 
vice. The issuing of such summons shall not be a stay of any criminal 
proceedings which have been instituted against such child and which are 
referred to in said petition or report except as hereinafter provided. In 
case the child has parent or parents within the jurisdiction of the Court 
with whom the child does not reside, but whose residence is known or can 
with reasonable diligence be ascertained, the said parent or parents shall 
be summoned to appear before the Court before the final disposition of 
the case. 

Civ. Pro., '12, § 77; 1911, XXYII, 135, 136; 1912, XXVII, 762. 

(202) § 40. May Summon Witnesses. — The Probate Court shall have 
the power to summon before it any witnesses which it m.Siy deem necessary 
to a proper investigation and determination of the allegations of the said 
petition or report. 

1912, XXVII, 763. 

(203) § 41. Report to Circuit Court. — Upon proof of the allegations 
of the petition the said Court shall have power to order such parent or par- 
ents or person with whom the child resides to do and perform such duties 
in regard to the support and control of the child as shall be lawful and 
right. In case it is found necessary to apply remedies beyond the con- 
stitutional powers of the Probate Court, the said Court shall certify the 
fact to the Court of Common Pleas, or to the Court of General Sessions, as 
the case may require, to act upon the same, and apply such remedies as may 
be lawful and right. 

1912, XXVII, 763. 

(204) § 42. May Appoint Custodian of Minors. — If after due hear- 
ing the Court shall assume the supervision, care or custody of the child, 
it shall require the parent or parents or persons with whom it resides, and 
in the discretion of the Court, in addition to these or in lieu thereof, some 
suitable and proper person or persons to serve without compensation, and 
to be known as probation officer or officers, to look after said child and 
to report to the Court for as long a period and as often as the Court shall 
require, as to the treatment and conduct of the said child; and the child 
shall report to said probation officer or officers from time to time, as the 
Court may prescribe ; and said probation officer or officers shall at all 
times have the right and power to investigate the surroundings, condi- 
tions, treatment and conduct of the child, and report same to the Court. 

1912, XXVII, 764. 

(205) § 43. May Revoke and Send to Orphan Asylum or Reformatory. 

— If at any time the Court shall find that the custody of the child should 
be taken from the parent or parents or person with whom it resides, it 
may bind over such child to some orphan asylum or other institution for 
the care of children, or to some responsible person or persons, in all cases 



OF SOUTH CAROLINA 73 

to be first approved by the Court after due investigation, who will agree 
in writing to care for the child in a humane manner and give it a reason- 
able amount of education, and to report to the Court at least once a year 
as to the treatment and conduct of the child, or in the discretion of the 
Court, the child, if colored, may be sent to the Reformatory, now located 
in Lexington County ; or if white, to the South Carolina Industrial School, 
now located in Florence County. 
1912, XXVII, 764. 

(206) § 44. May Remand for Trial. — If it appear to the Court that 
the child is incorrigibly criminal or has committed a crime which demands 
punishment rather than reformative discipline, the Court shall remand 
it to the proper Magistrate, Municipal Court or Sessions Court for trial 
and punishment. 

1912, XXVII, 764 

(207) § 45. Form of Arrest and Incarceration. — ^Upon the arrest of 
any child less than eighteen years of age, the arrest of the said child shall 
be reported to the Probate Court by the officer making the arrest as speed- 
ily as possible for investigation and action under this Act. But if con- 
finement be necessary before the case can be heard, the child shall not 
be incarcerated in the same room with adult criminals, but in a separate 
room of detention, and where the county or municipal authorities have 
made or shall make suitable provision therefor, said room or rooms shall 
be outside the jail or guardhouse : Provided, Separate accommodations 
shall be provided for boys and girls and for white and colored. 

1912, XXVII, 764. 

(208) § 46. Penalty. — The neglect or refusal to obey the summons of 
the Probate Court, or any lawful order made by it as here authorized 
shall be punishable as now authorized by law for the violation of the orders 
and decrees of said Court. 

1912, XXVII, 765. 

(209) § 47. Appeals. — All orders made in pursuance of this Act by 
the Probate Court shall be subject to review on appeal by the petitioner, 
the child or its parents or the person with whom it resides, or in case 
the child is charged with a crime beyond the jurisdiction of a Magistrate 
by the State, in which last case it shall be the duty of the Probate Court 
promptly to certify, to the Solicitor of the Circuit, at his request, the 
testimony in the case, together with his findings and orders thereon. All 
appeals shall be to the Judge of the Circuit at chambers, and shall be 
heard on the original papers. The appeal shall act as a stay of proceedings 
in the Probate Court until the issue shall be heard and determined by the 
Judge of the Circuit Court. An appeal shall lie from the Circuit Court, 
but such appeal shall not act as a supersedeas unless the Circuit Judge 
shall so order, stating in the order that the issue raised is in serious doubt, 
and that if his decree is erroneous, its enforcement might work serious 
harm. 

1912, XXVII, 765. 



74 CODE OF CIVIL PEOCEDUKE 

(210) § 48. Fees. — The cost and fees shall be the same as those in 
Magistrate's Courts for investigations, to be paid by the county in which 
the case is heard. 

1912, XXVII, 765. 

(211) § 49. Rights and Authority of Orphanage. — The said orphan 
asylum, and any orphanage, devoted to the relief of children who are 
destitute, abandoned or being raised in immoral and vicious surroundings, 
shall have full care and control over any child committed to it, as provided 
in Section 43 of this Chapter above; subject always to the right of the 
courts to inquire into the propriety and sufficiency of the care and 
maintenance being provided for any such child, and to modify or to 
change the care and custody of any child, as the Court may deem proper. 

Civ. Pro., '12, § 78; 1911, XXVII, 135, 136. 

(212) § 50. Orphange May Intrust Children to Individual or Family. 

— Any such orphanage to which a child has been committed, as provided 
in the last preceding Section and Section 43 of this Chapter, shall 
have the right to entrust any child, for its care, maintenance, rearing, 
education, and adoption to the care and custody of any individual or 
family, which it may deem proper, upon such guarantees as may be 
required by such orphanage. But this right shall be subject to the 
supervision, investigation and control of the Courts of Common Pleas 
of said State of South Carolina, upon application made to such Courts. 
Civ. Pro., '12, § 79; 1911, XXVII, 135, 136. 



CHAPTER V. 

Courts of Magistrates. 

(213) § 1. Civil Jurisdiction. — Magistrates shall have civil Jurisdic- 
tion in the following actions : 
1870, XIV, § 74; Con., Art. V, §§ 20 and 21. 

In order to give magistrate jurisdiction it must appear on the record that the defendant is 
a resident of the county. Hall v. Saillivan, 70 S. 0. 397, 50 S. E. 27. 

1. In actions arising on contracts for the recovery of money only, if the 
sum claimed does not exceed one hundred dollars. 

It is no objection to the jurisdiction of a magistrate that the plaintiff reduced his demand 
to bring it within the .iurisdiction of the magistrate; but where, in so reducing his claim, the 
plaintiff leaves out an item which he could have included in the cause of action, he cannot 
afterwards sue thereon. Catawba Mills v. Hood, 42 S. C. 203, 20 S. E. 91. A magistrate 
is deprived of jurisdiction by a counterclaim for an amount exceeding $100. Haygood v. 
Boney 43 S. C. 63, 20 S. B. 803. Magistrate cannot entertain counterclaim for over $100. 
Corley V. Evans, 69 S. C. 522, 48 S. E. 459. 

Party in a magistrate court may claim and sue for less than due on note, so as to give 
magistrate jurisdiction. Brunson v. Furtick, 72 S. C. 579, 52 S. E. 424, 5 Am. & Eng. 
Ann. Cas. 307. 

2. An action for damages for injury to rights pertaining to the person, 
or personal or real property, if the damages claimed do not exceed one 
hundred dollars, and in cases of bastardy. 

This gives concurrent jurisdiction with the Court of Common Pleas in such action for 
damages. State v. Eillebrown, 2 S. C. 404; Rhodes v. Railroad, 6 S. 0. 385. Such jurisdiction 
does not embrace actions for damages claimed above one hundred dollars. Stegall v. Bolt, 11 
S. C. 522. Nor for damages indefinite in amount, given by statute. State v. Weeks, 14 S. C. 
400. Action by landlord ' against constable for proceeds of crop in his hands applicable to 
rent, is such an' action for damages for injury to rights pertaining to personal property. Sullivan 
V. Ellison, 20 S. 0. 481. Jurisdiction of magistrates in matters of contract determined by 



OF SOUTH CAROLINA 75 

amount claimed, not by amount due. Brunson r. Furtick, 72 S. C. 582, 52 S. E. 424, 5 Am. 
& Eng. Ann. Cas. 307. 

This necessarily involves suits against corporations. Dennis v. Atlantic Coast Line Railroad, 
86 S. C. 258. 259. 68 S. E. 465. 

3. An action for a penalty, fine, or forfeiture, where the amount claimed 
or forfeited does not exceed one hundred dollars. 

A forfeiture of twenty dollars, under a statute which provides for its recovery in a Court 
of Record cannot be recovered hereunder. State v. Weeks, 14 S. C. 400. 

Jurisdiction of a foreign corporation. Best v. Seabord Air Line Railway, 72 S. C. 479, 480, 
52 S. E. 223. 

Jurisdiction in another county than which the cause of action arose by appearance of 
carrier, pleading and participating in trial. Jenkins v. Atlantic Coast Line R. Co., 84 S. C. 
343, 349, 66 S. E. 409. See, " also. Best v Seaboard Air Line Railway, 72 S. C. 479, 480, 
52 S. E. 223. 

4. An action commenced by attachment of property, as now provided 
by Statute, if the debt or damages claimed do not exceed one hundred dol- 
lars. 

Includes cases where defendant is a nonresident. Burckhalter v. Jones, 59 S. C. 89, 36 
S. E. 495. Jurisdiction of foreign corporation. Best v. S. A. L. Ry., 72 S. C. 480, 52 S. E. 223. 

5. An action upon bond conditioned for the payment of money, not 
exceeding one hundred dollars, though the penalty exceed that sum, the 
judgment to be given for the sum actually due. Where the payments are 
to be made by installments, an action may be brought for each install- 
ment as it becomes due. 

Hagood V. Blythe, 37 Fed. 249, 252. Trial Justice has jurisdiction of action on bond to 
recover the amount thereby secured and due, which is less than one hundred dollars, though 
the penalty exceed that amount. Cavander v. Ward, 28 S. C. 470, 6 S. E. 302. 

6. An action upon a surety bond taken by them, .where the penalty or 
amount claimed does not exceed one hundred dollars. 

7. An action upon a judgment rendered in a Court of a Magistrate 
or an inferior court, where such action is not prohibited by Section 310. 

8. To take and enter judgment on the confession of a defendant, where 
the amount confessed shall not exceed one hundred dollars, in the manner 
prescribed by law. 

9. An action for damages, fraud in the sale, purchase, or exchange of 
personal property, if the damages claimed do not exceed one hundred 
dollars, 

10. In all matters between landlord and tenant, and the possession of 
land as provided in Article II of Chapter LXVI. Vol. Ill, Code of 1922. 

11. An action to recover the possession of personal property claimed, 
the value of which, as stated in the affidavit of the plaintiff, his agent, 
or attorney, shall not exceed the sum of one hundred dollars. 

The plaintiff in such action, at the time of issuing the summons, but 
not afterwards, may claim the immediate delivery of such property as here- 
inafter provided. 

Before any process shall be issued in an action to recover the posses- 
sion of personal property, the plaintiff, his agent, or attorney, shall make 
proof by affidavitj showing : 

(1) That the plaintiff is the owner, or entitled to immediate posses- 
sion, of the property claimed, particularly describing the same. 



76 CODE OF CIVIL PROCEDURE 

(2) That such property is wrongfully withheld or detained by the de- 
fendant. 

(3) The cause of such detention or withholding thereof, according to 
the best knowledge, information, and belief of the person making the 
affidavit. 

(4) That said personal property has not been taken for any tax, fine, 
or assessment, pursuant to Statute, or seized by virtue of an execution 
or attachment against the property of said plaintiff ; or, if so seized, that 
it is exempt from such seizure by Statute. 

(5) The actual value of said personal property. 

Variance between affidavit and pleadings amended. Ehrhardt v. Breeland, 57 S. C. 142, 35 
S. E. 537. 

Affidavit must state that value of the property does not exceed one hundred dollars. 
Williams v. Irby, 10 S. 0. 371. 

But vrhether such statement is necessary in Circuit Court, on appeal, not decided. lb. 

It is not necessary to allege in summons that plaintiff is entitled to the possession of the 
property; it is sufficient to allege that the defendant is in unlawful possession of property 
belonging to the plaintiff. Dillard v. Samuels, 25 S. C. 318. 

This provision allowing such action for recovery of property less in value than one 
hundred dollars is not in conflict with Constitution, which limits jurisdiction in actions ex delicto 
where damages do not exceed one hundred dollars. Dillard v. Samuels, 25 S. C. 318. 

On appeal Circuit Court may hear affidavits to show demand before action of claim and 
delivery. Burton v. Laurens Cotton Mills, 64 S. C. 224, 41 S. E. 975. 

Magistrate has no .iurisdiction where chattels are alleged to be of value of $100 and damages 
are claimed in addition. Reynolds v. Philips, 72 S. C. 33, 51 S. E. 523. 

Is summons necessary in Magistrate's Court? Hasten Furniture Co. v. Southern Ry. Co., 82 
S. C. 238. 242, 64 S. E. 223. 

12. On receipt of such affidavit, and an undertaking, in writing, exe- 
cuted by one or more sufficient sureties, to be approved by the Magistrate 
before whom such action is commenced, to the effect that they are bound 
in double the value of such property as stated in said affidavit, for the 
prosecution of the said action, and for the return of said property to the 
defendant, if return thereof be adjudged, and for the payment to him of 
such sum as may, for any cause, be recovered against said plaintiff, the 
Magistrate shall endorse upon said affidavit a direction to any Constable 
of the county in which said Magistrate shall reside, requiring said Con- 
stable to take the property described therein from the defendant, and 
keep the same, to be disposed of according to law; and the said Magistrate 
shall at the same time issue a summons, with a copy of the undertaking, 
directed to the defendant, and requiring him to appear before said Magis- 
trate at a time and place to be therein specified, and not more than twenty 
days from the date thereof, to answer the complaint of said plaintiff; and 
the said summons shall contain a notice to the defendant that, in case he 
shall fail to appear at the time and place therein mentioned, the plaintiff 
will have judgment for the possession of the property described in said affi- 
davit, with the costs and disbursements of said action. 

1879, XVII, 28. 

Endorsement of appeal on undertaking. Cromer v. Watson, 59 S. C. 488, 38 S. E. 126. 

Such undertaking not necessary unless the plaintiff claims the immediate delivery of the 
property. Dillard v. Samuels. 25 S. C. 318. 

The summons is fatally defective if it name a day for trial more than twenty days after 
its date. Simmons v. Cochran, 29 S. C. 31, 6 S. E. 859. 

This case distinguished / in State v. Smith, 38 S. C. 270, 16 S. E. 997; reaffirmed in 
Kelly V. Kennomore, 47 S. C. 256, 25 S. E. 134. 

Immaterial whether the summons is addressed to the defendant or officer. Bell v. Pruitt, 
51 S. C. 344, 29 S. E. 6. 

Refers exclusively to actions of claim and delivery. Hasten Furniture Co. v. Southern 
Railway, 82 S. C. 238. 242, 64 S. E. 223. 



OF SOUTH CAROLINA 77 

13. The Constable to whom said affidavit, endorsement and summons 
shall be delivered, shall forthwith take the property described in said affi- 
davit, if he can find the same, and shall keep the same in his custody. He 
shall, thereupon, without delay, serve upon said defendant a copy of such 
affidavit, notice and summons, by delivering the same to him personally, 
if he can be found in said county; if not found, to the agent of the de- 
fendant in whose possession said property shall be found; if neither can 
be found, by leaving such copies at the last or usual place of abode of 
the defendant, with some person of suitable age and discretion. And he 
shall forthwith make a return of his proceedings thereon, and the man- 
ner of serving the same, to the Magistrate who issued the said summons. 

14. The defendant may at any time after such service, and at least two 
days before the return day of said summons, serve upon plaintiff, or upon 
the Constable who made such service, a notice in writing that he excepts 
to the sureties in said bond or undertaking; and if he fail to do so, all 
objection thereto shall be waived. If such notice be served, the sureties 
shall justify, or the plaintiff give new sureties, on the return day of said 
summons, who shall then appear and justify, or said Magistrate shall order 
said property delivered to defendant, and shall also render judgment for 
defendant's costs and disbursements. 

Waiver of any irregularity or defect in undertaking bv not excepting. Cromer v. Watson, 
59 S. C. 488, 38 S. E. 126. 

15. At any time before the return day of said summons, the said defend- 
ant may, if he has not excepted to plaintiff's sureties, require the return 
of said property to him upon giving to the plaintiff, and filing same with 
the Magistrate, a written undertaking, with one or more sureties, who shall 
justify before said Magistrate on the return day of said summons, to the 
effect that they are bound in double the value of said property, as stated 
in plaintiff's affidavit, for the delivery thereof to said plaintiff, if such 
delivery be adjudged, and for the payment to him of such sum as may 
for any cause be recovered against said defendant; and if such return be 
not required before the return day of said summons, the property shall 
be delivered to said plaintiff. 

Civ. Pro., '12, § 80; Civ. Pro., '02, § 71. 

(214) § 2. Qualification of Bail. — The qualification of bail must be 
as follows : 

1. Each of them must be a resident, and householder or freeholder within 
the State. 

2. They must each be worth the amount specified in the order of arrest, 
exclusive of property exempt from execution; but the Judge or a Magis- 
trate, on justification, may allow more than two bail to justify severally in 
amounts less than that expressed in the order, if the whole justification be 
equivalent to that of two sufficient bail. 

Civ. Pro., '12, § 81 ; Civ. Pro., '02, § 72 ; 1870, XIV, § 75. 

(215) § 3. Justification of Bail. — For the purpose of justification, 
each of the bail shall attend before the Judge or a Magistrate at the time 
and place mentioned in the notice, and may be examined on oath, on the 



78 CODE OF CIVIL PROCEDURE 

part of the plaintiff, touching his sufficiency, in such manner as the Judge 
or Magistrate, in his discretion, may think proper. The examination shall 
be reduced to writing, and subscribed by the bail, if required by the plain- 
tiff. 

Civ. Pro., '12, § 82 ; Civ. Pro., '02, § 73 ; 1870, XIV, § 76. 

(216) § 4. Allowance of Bail. — If the Judge or Magistrate find the 
bail sufficient he shall annex the examination to the undertaking, endorse 
his allowance thereon, and cause them to be filed with the Clerk; and the 
Sheriff shall, thereupon, be exonerated from liability. 

Civ. Pro., '12, § 83 ; Civ. Pro., '02, § 74 ; 1870, XIV, § 77. 

(217) § 5. Property — How Taken When Concealed in Building or 
Enclosure. — If the property, or any part thereof, be concealed in a build- 
ing or enclosure, the Constable shall publicly demand its delivery. If it be 
not delivered, he shall cause the building or enclosure to be broken upon, 
and take the property into his possession; and, if necessary, he may call 
to his aid the power of his county. 

Civ. Pre, '12, § 84 ; Civ. Pro., '02, § 75 ; 1870, XIV, 78. 

(218) § 6. Property — How Kept. — When a Constable shall have 
taken property, as in this Chapter provided, he shall keep it in a secure 
place, and deliver it to the party entitled thereto, upon receiving his law- 
ful fee for taking, and his necessary expenses for keeping the same. 

Civ. Pro., '12, § 85; Civ. Pro., '02, § 76; 1870, XIV, 79. 

(219) § 7. Claim of Property by Third Person, — If the property taken 
be claimed by any other person than the defendant or his agent, and such 
person shall make affidavit to his title thereto, and right to the possession 
thereof, stating the grounds of such right and title, and serve the same 
upon the Constable, the Constable shall not be bound to keep the prop- 
erty or deliver it to the plaintiff, unless the plaintiff on demand of him 
or his agent, shall indemnify the Constable against such claim, by an un- 
dertaking, executed by two sufficient sureties, accompanied by their affi- 
davits, that they are each worth double the value of the property as speci- 
fied in the affidavit of the plaintiff, and are freeholders and householders 
of the county. And no claim to such property, by any other person than 
the defendant or his agent, shall be valid against the Constable, unless 
made as aforesaid; and notwithstanding such claim, when so made, he may 
retain the property a reasonable time to demand such indemnity. 

The actions so commenced shall be tried in all respects as other actions 
are tried in the Magistrates' Courts. 

The judgment for the plaintiff may be for the possession, or for the re- 
covery of the possession, or the value thereof, in case a delivery cannot be 
had, and of damages for the detention. If the property have been delivered 
to the plaintiff, and the defendant claim a return thereof judgment for the 
defendant may be for a return of the property, or the value thereof, in 
case a return cannot be had, and damages for taking and withholding the 
same. An execution shall be issued thereon and if the judgment be for the 
delivery of the possession of personal property, it shall require the offi- 



OF SOUTH CAROLINA 79 

cer to deliver the possession of the same, particularly describing it, to the 
party entitled thereto, and may, at the same time, require the officer to 
satisfy any costs or damages recovered by the same judgment out of the 
personal property of the party against whom it was rendered, to be speci- 
fied therein, if a delivery thereof cannot be had. The execution shall be 
returnable within sixty days after its receipt by the officer to the Magis- 
trate who issued the same. 

In all actions for the recovery of the possession of personal property, as 
herein provided, if the property shall not have been delivered to plaintiff, 
or the defendant by answer, shall claim a return thereof, the Magistrate 
or jury shall assess the value thereof, and the injury sustained by the pre- 
vailing party by reason of the taking or detention thereof, and the Magis- 
trate shall render judgment accordingly, with costs and disbursements. 

If it shall appear by the return of a Constable that he has taken the prop- 
erty described in the plaintiff's affidavit, and that defendant cannot be 
found, and has no last place of abode in said county, or that no agent 
of defendant could be found, on whom service could be made, the Magis- 
trate may proceed with the cause in the same manner as though there had 
been a personal service. 

For the endorsement on said affiidavit the Magistrate shall receive an 
additional fee of twenty-five cents, which shall be included in the costs 
of the suit. 

Civ. Pro., '12, § 86; Civ. Pro., '02, § 77; 1870, XIV, § 80. 

Such judgment may be given for valve of the property, though the demand is only for 
its recovery and damages for its detention. Joplin v. Carrier, H S. C. 327. It cannot be 
given in case where party is entitled to general damages. lb. But where there are proper alle- 
gations, plaintiff may, on appeal, in Circuit Court, elect to treat the action as one for damages. 
Williams v. Irby, 16 S. C. 371. Where verdict is not in proper form, the trial Justice cannot 
change it; new trial is the remedy. DuBose v. Armstrong, 29 S. C. 290, 6 S. E. 984. 

Verdict in claim and delivery may be referred to pleadings for more particular description 
of property. Verdict in this case sufficient compliance with statute. Bossard v. Vaughn, 68 
S. C. 96, 98, 46 S. E. 523. 

In claim and delivery proceeding the defendant cannot defeat the action by showing title 
in third party. Rogers v. Felder, 98 S. C. 178; 82 S. E. 436. 

(220) § 8. No Jurisdiction in Certain Cases. — ^But no Magistrate 
shall have cognizance of a civil action : 

1. In which the State is a party, excepting for penalties not exceeding 
one hundred dollars. 

2. Nor where the title to real property shall come in question. 

Does not include proceedings to eject tenant. State v. Fickling, 10 S. C. 30 ; State v. 
Marshall, 24 S. C. 507. Does not apply to criminal cases. State v. Holcomb, 63 S. C. 60, 
40 S. E. 1017. 

3. Nor of a civil action for an assault, battery, false imprisonment, libel, 
slander, malicious prosecution, criminal conversation, or seduction, where 
the damages claimed exceed one hundred dollars. 

Civ. Pro., '12, § 87; Civ. Pro., '02, § 78; 1870, XIV, § 81; 1873, XV, 496. 

Where a Railroad Company, sued in the Magistrate's Court for damages to plaintiff's land 
by fire, did not follow the procedure prescribed by this section, it is precluded from questioning 
plaintiff's title to the land, and the Magistrate has jurisdiction, notwithstanding the Constitution. 
Article 5. Section 21. Barnes v. C. &. W. 0. RR. Co., 106 S. C. 227; 90 S. E. 1017. 

A Magistrate in whose Court plaintiff sued for trespass by cutting timber after dissmissing com- 
plaint on motion of defendant's attorneys on an answer of tifle to real property pursuant 
to this Section, had discretion to allow plaintiff to discontinue. Thomas v. Shea, 111 S. C. 
416; 98 S. E. 145. 

(221) § 9. Answer of Title. — In every action brought in a Court of 
Magistrate where the title to real property shall come in question, the de- 



80 CODE OF CIVIL PROCEDURE 

fendant may, either with or without other matter of defense, set forth in 
his answer any matter showing that such title will come in question. Such 
answer shall be in writing, signed by the defendant or his attorney, and 
delivered to the Magistrate. The Magistrate shall thereupon countersign 
the same and deliver it to the plaintiff. 

Civ. Pro., '12, § 88; Civ. Pro., '02, § 79; 1870, XIV, § 82. 

High V. Wingo, 84 S. C. 246, 66 S. E. 185. See, also, note to § 220. 

This Section does not apply to a criminal case where the title to real estate is an issue. 
State V. Richardson, 98 S. C. 147; 82 S. E. 353. 

A Magistrate before whom an action is brought for trespass for cutting timber, where a 
defense is interposd of "title to real property," had the right, in his discretion, to grant 
an order allowing plaintiff to discontinue the suit. Thomas *. Shea, 111 S. 0. 416; 98 S. E. 145. 

(222) § 10. Written Undertaking by Defendant. — At the time of an- 
swering the defendant shall deliver to the Magistrate a written undertak- 
ing, executed by at least one sufficient surety, and approved by the Mag- 
istrate, to the effect that if the plaintiff shall, within twenty days thereafter, 
deposit with the Magistrate a summons and complaint in an action in the 
Circuit Court for the same cause, the defendant will, within twenty days 
after such deposit, give an admission in writing to the service thereof. 

Where the defendant was arrested in the action before the Magistrate 
the undertaking shall further provide that he will, at all times, render him- 
self amenable to the process of the Court during the pending of the action, 
and to such as may be issued to enforce the judgment therein. In case of 
failure to comply with the undertaking, the surety shall be liable not ex- 
ceeding one hundred dollars. 

Civ. Pro., '12, § 89 ; Civ. Pro., '02, § 80 ; 1870, XIV, § 83. 

High V. Wingo, 84 S. C. 246, 248, 66 S. E. 185. 

(223) § 11. Suit Discontinued on Undertaking of Defendant. — Upon 
the delivery of the undertaking to the Magistrate the action before him 
shall be discontinued, and each party shall pay his own costs. The costs 
80 paid by either party shall be allowed to him if he recover costs in the 
action, to be brought for the same cause in the Circuit Court. If no such 
action be brought within thirty days after the delivery of the undertaking, 
the defendant's costs before the Magistrate may be recovered of the plain- 
tiff. 

Civ. Pro., '12, § 90 ; Civ. Pro., '02, § 81 ; 1870, XIV, § 84. 

High V. Wingo, 84 S. C. 246, 248, 66 S. E. 185. 

(224) § 12, If Undertaking Not Given. If the undertaking be not 
delivered to the Magistrate he shall have jurisdiction of the cause, and 
shall proceed therein ; and the defendant shall be precluded, in his defense, 
from drawing the title in question. 

Civ. Pro., '12, § 91; Civ. Pro., '02, § 82; 1870, XIV, § 85. 

(225) §13. If Plaintiff's Showing Develop Issue of Title to Real Prop- 
erty. — If, however, it appear on the trial, from the plaintiff's own 
showing, that the title to real property is in question, and such title shall 
be disputed by the defendant, the Magistrate shall dismiss the action and 
render judgment against the plaintiff for the costs. 

Civ. Pro., '12. § 92 ; Civ. Pro., '02, § 83 ; 1870, XIV, § 86. 



OF SOUTH CAROLINA 81 

(226) § 14. New Action. — When a Suit before a Magistrate shall be 
discontinued by the delivery of an answer and undertaking, as provided 
in Sections 9, 10, and 11, the plaintiff may prosecute an action for the 
same cause in the Circuit Court, and shall complain for the same cause of 
action only on which he relied. before the Magistrate, and the answer of 
the defendant shall set up the same defense only which he made before the 
Magistrate. 

Civ. Pro., '12, § 93 ; Civ. Pro., '02, § 84 ; 1870, XIV, § 87. 

Where, in suit for wilfully cutting and removing timber defendant sets up title in himself 
and tenders proper undertaking, and magistrate indorses on summons, "This action is dis- 
continued," action brought in Circuit Court must be on same cause of action. Notice of 
phiintiff that case is withdrawn and discontinued, served after order of magistrate, is not 
binding on defendant. High v. Wingo, 84 S. C. 246, 66 S. E. 185. 

(227) § 15. Costs.— If the judgment in the Circuit Court be for the 
plaintiff, he shall recover costs ; if it be for the defendant, he shall recover 
costs, except that upon a verdict he shall pay costs to the plaintiff, unless 
the Judge certify that the title to real property came in question on the 
trial. 

Civ. Pro., '12, § 94; Civ. Pro., '02, § 85; 1870, XIY, § 88. 

(228) § 16. Answer of Title as to One Cause of Action. — If, in an 

action before a Magistrate, the plaintiff have several causes of action, to one 
of which the defense of title to real property shall be interposed, and, as 
to such cause, the defendant shall deliver an answer and undertaking, as 
provided in Sections 9 and 10, the Magistrate shall discontinue the pro- 
ceedings as to that cause, and the plaintiff may commence another action 
therefor in the Circuit Court. As to the other causes of action, the Mag- 
istrate may continue his proceedings. 

Civ. Pro., '12, § 95; Civ. Pro., '02, § 86; 1870, XIV, § 89. 

(229) § 17. Docketing Judg-ments — Transcript^ — Operation — Sale — 
Setting Aside Judgment — New Trial. — A Magistrate, on the demand of 
a party in whose favor he shall have rendered a judgment, shall give a 
transcript thereof, which may be filed and docketed in the office of the 
Circuit Court of the county where the judgment was rendered. The time 
of the receipt of the transcript by the Clerk shall be noted thereon and 
entered in the Abstract of Judgments, and from that time the judgment 
shall be a judgment of the Circuit Court, but no sale shall be made under 
any execution issued upon such judgment in the Circuit Court until tlie 
time for appealing from the judgment in the Magistrate's Court has ex- 
pired, nor pending such appeal. If the judgment is set aside in the Mag- 
istrate's Court, it shall have the effect of setting aside the judgment filed 
and docketed in the Circuit Court. The filing and docketing such transcript 
in the Circuit Court shall not affect the right of the Magistrate to grant a 
new trial. A certified transcript of such judgment may be filed and doc- 
keted in the Clerk's office of any other county, and with like effect, in 
every respect, as in the county where the judgment was rendered. 
Civ. Pro., '12, § 96; Civ. Pro., '02, § 87; 1870, XIV, § 90; 1887, XIX, 831. 

There is no limit of time within which the transcript must be filed. Rhoad v. Patrick, 
37 S. C. 517, 16 S. E. 536. 

Such transcript of a valid .iudgment only of the trial Justice can be so filed: if .iudgment 
is null, the transcript is null. Barron r. Dent, 17 S. C. 75. And the transcript must 
show everything necessary to sive jurisdiction to the trial Justice, to make the judgment 
valid. Benson v. Carrier, 28 S. C. 119. 5 S. E. 272. 

7 C C P 



82 CODE OF CIVIL PROCEDURE 

Such transcript is properly signed by an authorized clerk of the trial Justice. Brown v. 

Buttz, 15 S. C. 490. Trial Justice has no power to vacate judgment after the transcript 

has been filed in the Circuit Court. lb.; Lawrence v. Isear, 27 S. C. 244, 3 S. E. 222. 

When transcript filed the .iudgment becomes the judgment of the Court of Common Pleas. 
Rhoad V. Patrick, 37 S. C. 517, 16 S. E. 536. 

And execution is to be issued thereon by the Clerk of the Circuit Court. Amick v. 
Amick, 59 S. C. 70. 37 S. E. 39. 

(230) § 18. Rules. — The following rules shall be observed in the 
Courts of Magistrates : 
1S70, XIV, 423 ; 1870, XIV, § 91. 

1. The pleadings in the Courts are : 1. The complaint by the plaintiff. 
2. The answer by the defendant. 

2. The pleadings may be oral or in writing; if oral, the substance of 
them shall be entered by the Magistrate in his docket ; if in writing, they 
shall be filed by him, and a reference to them shall be made in the docket. 

Holladay v. Hodge, 84 S. C. 91, 92, 65 S. E. 952. 

The defendant may plead orally to written complaint. Williams i'. Irby, 15 S. 0. 458. 

3. The complaint shall state, in a plain and direct manner, the facts 
constituting the cause of action. 

4. The answer may contain a denial of the complaint, or any part 
thereof, and also a notice, in a plain and direct manner, of any facts 
constituting a defense or counterclaim. 

Notice of counterclaim must be given. Williams v. Irby, 15 S. C. 458. Counterclaim 
cannot be interposed in action to recover a specific chattel. Ih. 

In action to recover balance due farm laborer for services, a counterclaim may be based 
on the allegation that he killed a horse while working it. Havgood v. Boney, 43 S. C. 63, 
20 S. E. 803. 

5. Pleadings are not required to be in any particular form, but must 
be such as to enable a person of common understanding to know what 
is intended. 

Dillard v. Samuels, 25 S. C. 318; Riggs v. Wilson, 30 S. C. 172, 8 S. E. 848. 

Not necessary for summons in civil suit before Magistrate to show residence of defendant 
in county; sufficient if record shows it. Hall v. Sullivan, 70 S. C. 397, 50 S. B. 27. See 
Jenkins v. Southern Ry., 73 S. C. 295, 53 S. E. 481; Brunson v. Furtick, 72 S. C. 581, 
52 S. B. 424, 5 Am. & Eng. Ann. Cas. 307. 

Complaint in suit for per diem penalty provided in 24 stat. 671 sufficient. Farrell v. 
Atlantic Coast Line R. Co., 82 S. 0. 410, 64 S. E. 226. 

6. Either party may demur to a pleading of his adversary, or to any 
part thereof, when it is not sufficiently explicit to enable him to under- 
stand it, or it contains no cause of action or defense, although it be taken 
as true. 

Holladay v. Hodges, 84 S. C. 91, 92, 65 S. B. 952. 

Technical rules of procedure are not applicable in Magistrate's Courts and makes little 
difference in what form objections are raised, provided they are made in due time. Darby v. 
S. Ry. Co.. 108 S. C. 145; 93 S. B. 716. 

7. If the Court deem the objection well founded, it shall order the 
pleadings to be amended; and, if the party refuse to amend, the defective 
pleading shall be disregarded. 

Holladay v. Hodge, 84 S. C. 91, 92, 65 S. B. 952. 

Leave to amend; strictness in order not required. Medicine Co. v. Hare, 56 S. C. 
456. 35 S. E. 130. 

8. Proof of Service and No Answer — Liquidated and Unlimited De- 
mand — Proof of Claim. — In any action on contract where a defendant does 
not appear and answer, the plaintiff may file proof of the service of the 
summons and complaint, or of the summons, on one or more of the 
defendants, and that no answer or demurrer has been served upon him. 



OF SOUTH CAROLINA 83 

When the action is for the recovery of money only, judgment may be 
given for the plaintiff by default, if the demand be liquidated, and if 
unliquidated, and the plaintiff itemize his account and append thereto an 
affidavit that it is true and correct and no part of the sum sued for has 
been paid by discount or otherwise, and a copy be served with the sum- 
mons on the defendant, and the defendant shall neither answer or demur, 
the plaintiff shall have judgment for the sum sued for, as in the case of 
liquidated demands. In all other cases where the defendant fails to 
appear and answer, the plaintiff cannot recover without proving his case. 
1SS7, XIX, 833. 

The last clause applies to cases by default. Barron v. Dent, 17 S. C. 75. 

And the fact of endorsements upon the summons that there was a hearing and examination 
of witnesses is not sufficient to show that defendant appeared and defended. lb. 

Nor can such showing; be made by parol testimony. 76. 

Is a summons necessary in a magistrate court? Hasten Furniture Co. v. Southern Railwav, 
82 S. C. 238. 64 S. E. 223. 

There is no express requirement for a summons except in § 213. 76. 

9. Action or Defense Founded Upon an Account. — In an action or 
defense founded upon an account, or an instrument for the payment of 
money only, it shall be sufficient for a party to deliver the account or 
instrument to the Court, and to state that there is due to him/ thereon, 
from the adverse party, a specified sum, which he claims to recover or 
set off. 

1870, XIV, 423, § 91. 

Does not nullify last clause of preceding subdivision ; does not apply to default cases. 
Barron v. Dent. 17 S. C. 75. 

10. Variance. — A variance between the proof on the trial and the alle- 
gations in a pleading shall be disregarded, as immaterial, unless the 
Court shall be satisfied that the adverse party has been misled to his 
prejudice thereby. 

11. Amendment of Pleadings. — The pleadings may be amended at any 
time before the trial, or during the trial, or upon appeal, when, by such 
amendment, substantial justice willbe promoted. If the amendment be 
made after the joining of the issue, and it be made to appear to the satis- 
faction of the Court, by oath, that an adjournment is necessary to the ad- 
verse party, in consequence of such amendment, an adjournment shall be 
granted. The Court may also in its discretion, require as a condition of an 
amendment, the payment of costs to the adverse party. 

Amendment allowed during trial. Harby v. Wells, 52 S. C. 156, 29 S. E. 563. See, also, 
Medicine Co. v. Hare, 56 S. C. 462, 35 S. E. 130. 

Complaint, amended bv permission of Court, in Court after demurrer sustained, should be 
served on defendant. Holladay v. Hodge, 84 S. C. 91, 65 S. E. 952. 

Return of Sheriff on a summons in attachment mav be shown to be incorrect and an amend- 
ment allowed. Saunders v. Landreth Seed Co., 91 S. C. 26, 74 S. E. 120. 

12. Issuance of Magistrates' Executions — Sales Thereunder. — Ex- 
ecution may be issued on a judgment heretofore or hereafter rendered in 
Magistrates' Courts at any time after the rendering of such judgment, 
and within three years after the rendition thereof, and shall be return- 
able sixty days from date of the same, but no sale thereunder shall be 
made until after the time for appealing has expired, nor pending such 
appeal: Provided, That in cases for the claim and delivery of personal 
property where bond for the property claimed has been properly given 
by either party, the status of such property shall not be changed until 



84 CODE OF CIVIL PROCEDURE • 

after the expiration of the time for appealing has expired, or until such 
appeal has terminated. 
1887, XIX, 832. 

When execution may issue: after transcript is filed in Circuit Court. Rhoad v. Patrick, 
37 S. C. 517, 16 S. E. 536; Amick v. Amick, 59 S. C. 70, 37 S. E. 39. 

In issuing execution trial Justice acts judicially and is not liable in damages therefor 
unless it was done wilfully and corruptlv. McCall v. Cohen, 16 S. C. 445; Abrams v. 
Carlisle, 18 S. C. 242. 

Can trial Justice issue execution within the five days allowed for motion for new trial? 
Abrams v. Carlisle. 18 S. C. 242. 

13. Issuance of Execution to Sheriff. — If the judgment be docketed 
with the Clerk of the Circuit Court, the execution shall be issued by him 
to the Sheriff of the county, and have the same effect, and be executed 
in the same manner, as other executions and judgments of the Circuit 
Court. 

Lawrence v. Isear, 27 S. C. 244, 3 S. E. 222; Amick v. Amick, 59 S. C. 70, 37 
S. E. 39; Bragg v. Thompson, 19 S. C. 572; Rhoad v. Patrick, 37 S. C. -517, 16 S. E. 536. 

14. Refusing Exhibit of Account or Statement of Nature. — The 
Court may, at the joining of the issue, require either party, at the request 
of the other, at that or some other specified time, to exhibit his account^ 
or state the nature thereof as far as may be in his power, and, in case of 
his default, preclude him from giving evidence of such parts thereof as 
shall not have been so exhibited or stated. 

15. Forms of Action, Parties, Evidence, Commencement of Action 
and Service on Corporations. — The provisions of this Code of Procedure, 
respecting forms of actions, parties to actions, the rules of evidence, the 
times of commencing actions, and the service of process upon corpora- 
tions, shall apply to these Courts. 

The defendant may, on the return of process, and before answering, 
make ani offer in writing to allow judgment to be taken against him for 
an amount, to be stated in such offer, with costs. The plaintiff shall there- 
upon, and before any other proceeding shall be had in the action, 
determine whether he will accept or reject such offer. If he accept the 
offer, and give notice thereof in writing, the Magistrate shall file the 
offer and the acceptance thereof, and render judgment accordingly. If 
notice of acceptance be not given, and if the plaintiff fail to obtain judg- 
ment for a greater amount, exclusive of costs, than has been specified in 
the offer, he shall not recover costs, but shall pay to the defendant his 
costs accruing subsequent to the offer. 

Wideman v. Patton, 64 S. C. 408, 42 S. E. 190. 

It is error in trial Justice to refuse to allow defendant's counsel to cross-examine generally 
plaintiff's witness. Dillard v. Samuels, 25 S. C. 318. 

Plaintiff is liable for all costs of the case, subsequent to defendant's offer, if he refuses 
to accept it, and recover less. Williford v. Gadsden, 27 S. C. 87, 2 S. E. 858. 

Provision as to forms of actions. Kelly v. Kennemore, 47 S. C. 256, 25 S. B. 134. 

May appoint guardian ad litem. Wideman v. Patton, 64 S. C. 410, 42 S. E. 190. 

16. Time for Serving Complaint — When and How Shortened. — "When 
twenty-five or more dollars is demanded, the complaint shall be served 
on the defendant not less than twenty days ; and where less than that 
sum is demanded, not less than five days before the day therein fixed for 
trial : Provided, That if the plaintiff shall make out that he is apprehen- 
sive of losing his debt by such delay, and the Magistrate considers that 
there is good reason therefor (the grounds of such apprehension being 
set out in an affidavit and served with a copy of the complaint), he may 



OF SOUTH CAROLINA 85 

make such process returnable in such time as the justice of the case may 
require. 
1S91, XX, 1113. 

Summons requiring appearance on twentieth dav void. Adkins v. Moore, 43 S C 173 20 
S. E. 985; Paul v. So. Ry. Co., 50 S. C. 23, 27 S. E. 526. But summons to appear on 
twenty-first day was held sufficient in Wildeman v. Pruitt, 52 S. C. 84. 29 S. E. 405. 

Defendant may waive the twenty days' notice; and if he goes to trial on less notice without 
objection, he is bound by the judgment. ' Benson v. Carrier, 28 S. C. 119, 5 S. E. 272. 
As to the proviso, applied. Cavander v. Ward, 28 S. C. 470, 6 S. E. 302. The summons 
under this proviso may be made returnable on the same day it is served. Cothran v. 
Knight, 47 S. C. 243, 25 S. E. 142. 

Defect in summons is waived by appearance and pleading to the merits. Williams v. 
Garvin, 51 S. C. 399, 29 S. E. 1; Rosamond r. Earle, 46 S. C. 9, 24 S. E. 44; Bird v. 
Sullivan, 58 S. C. 52. 36 S. E. 494. 

It may be waiver by appearing without objecting to jurisdiction of the Court. Grant v. 
Clinton Mills, 56 S. C. 557, 35 S. E. 193. 

Where time for answer is shortened, some fact must be stated to show that the debt 
would otherwise be lost. Moore v. Southern Ry., 76 S. 0. 335, 56 S. E. 971. Dating 
is not requisite to validity of summons. Butler Bros v. Welch, 76 S. C. 130, 56 S. E. 668. 

Service on one member of partnership, binds partnership property and property of member 
served. Price r Yarn, 76 S. C. 359, 57 S. E. 184; Hasten Furniture Co. v. Southern 
Ry., 82 S. C. 240, 64 S. E. 223. 

Where magistrate, on motion made on day set for trial to make paper served more 
definite as complaint, holds paper served was only summons and then permits plaintiff to 
file complaint, he should give defendant twenty davs to answer complaint. Hasten Furniture Co. 
V. Southern Railway. 82 S. C. 238, 64 S. E." 223! 

Technical rules of procedure are not applicable in Magistrate's Courts, and makes little 
difference in what form objections are raised, provided they are made in due time. Darby v. 
S. Ry. C. 108 S. C. 145; 93 S. E. 716. 

In the Magistrate's Court, in a suit for recovery of more than $25.00, where attachment 
is properly asked for and defendant, after objecting to the jurisdiction of his person, with- 
drew from the case, it was not a waiver of his right to plead the jurisdiction of the court 
on the ground that the summons was returnable 15 days after service. Able v. Hall, 
101 S. C. 24; 85 S. E. 165. 

17. New Trials. — Any Magistrate Court of this State shall have power 
to grant a new trial in any case tried in the said Courts for reasons for 
which new< trials have usually been granted in the Courts of law of this 
State. The granting of a new trial shall in no wise affect the right and 
duty of such Magistrate to change the venue of said case, as provided 
in Subdivision 19 of this Section. 

1S76, XVI, 60 ; 190S, XXV, 1032. 

A motion for new trial is not required as a condition precedent to an appeal. Minnick v. 
Fort. 13 S. C. 215. 

He cannot so relieve against his own judgments on grounds of mistake, inadvertence, 
surprise or neglect; that can only be done by appeal. lb. So as to judgments by default, 
that may be satisfactorily excused. Lawrence v. Isear, 27 S. C. 244, 3 S. E. 222. New 
trial will not be granted where irrelevant testimony is received against objection, which 
could not have affected the verdict. Riggs r. Wilson," 30 S. C. 172, 8 S. E. 848. Appeal 
lies to the Circuit Court from an order granting a new trial. Redfearn v. Douglass, 35 
S. C. 569. 15 S. E. 244. 

18. Time for IMotion for New^ Trial. — No motion for a new trial shall 
be heard unless made Avithin five days from the rendering of the judg- 
ment : Provided, That the right of appeal from the judgment shall exist 
for five days after the refusal of a motion for a new trial. 

Notice of motion must be given within five days. Doty v. Duvall, 19 S. C. 143. But need not be 
in writing. Mitchell v. Bates, 57 S. C. 44, 35 S. E. 420. The hearing (Whetstone v. 
Livingston, 54 S. C. 539, 32 S. E. 561) and decision may be later. Speer v. Meschine, 46 
S. C. 505, 24 S. E. 229, 331. And the motion may be made on a legal holiday. Mitchell 
V. Bates, suvra. 

19. Change of Venue. — Magistrates shall have the power to change the 
venue in all cases, civil and criminal, pending before them : Provided, That 
in counties where they have separate and exclusive territorial jurisdic- 
tion the change of venue shall be to another Magistrate's district in the 
same county. Whenever either party in a civil case, or the prosecutor or 
accused in a criminal case, which is to be tried before a Magistrate, shall 
file with the Magistrate issuing the paper an affidavit to the effect that he 
does not believe he can obtain a fair trial before the Magistrate, the papers 



r 



86 CODE OF CIVIL PROCEDURE 

shall be turned over to the nearest Magistrate not disqualified from hear- 
ing said cause in the county, who shall proceed to try the case as if he had 
issued the papers : Provided, Such affidavit shall set forth the grounds of 
such belief, and in civil cases two days notice of the application for change 
of venue shall be given to the adverse party. One such transfer only shall 
be allowed each party in any case. 

Civ. Pro., '12. § 07; Civ. Pro., '02, § SS ; 1SS7, XIX, TS7 ; ISDG, XXII. 13. 

The party mr.st make the affidaTit himself. Cromer v. Watson, 59 S. C. 126 38 S E 
126, 128. 

Affidavit for change of venue in Magistrate's Court must state reasons whv fair trial 
cannot be had. Bacot v. Deas, 67 S. C. 245, 45 S. E. 171. Affidavit should contain such 
statement of facts as would form basis of indictment for perjury. Witte v. Cave, 73 S C 
15, 17, 52 S. E. 736. 

Two _ days' notice necessary for motion of change of venue before Magistrate, unless facts 
stated in affidavit show that applicant became aware of the facts at a time when he could not 
have given two days' notice. Mayes i.-. Evans, 80 S. C. 362, 61 S. E. 216. 

Affidavit should state facts, not opinions. Witte v. Cave, 73 S. C. 15, 52 S. E. 736; 
State V. Conkle, 64 S. C. 371. 42 S. E. 173; Maves v. Evans, 80 S. C. 362, 61 S. E. 216; 
Bacot V. Deas, 67 S. C. 245, 45 S. E. 171. 

Where party files sufficient affidavit, grant of change of venue is mandatory. State v. 
Conkle, 64 S. C. 371. 42 S. E. 173. 

Strict compliance with requirements necessary to make dutv mandatory. Maves v. Evans, 
80 S. C. 362. 61 S. E. 216. 

Affidavits cannot be amended at hearing. Bacot v. Deas, 67 S. C. 245, 45 S. E. 171. 

Affidavit that magistrate had said in presence of parties that mover did not have case 
is not sufficient to warrant change of venue. Mayes v. Evans, 80 S. C. 362, 61 S. E. 216. 

(231) § 19. Waiver of Jurisdiction in Actions in Magistrates' Courts, 
Brought in Wrong County. — When any civil action cognizable by Magis- 
trates shall be brought in the wrong county, the mere failure of the de- 
fendant to appear shall not be deemed a waiver of any objection such de- 
fendant may have to the jurisdiction of the Magistrate : Provided, That 
nothing herein contained shall be construed to prevent any positive action 
of such defendant from which an intention to waive the jurisdictional ob- 
jection might be inferred from operating as such waiver. 
1919, XXXI, 51. 



CHAPTER VI. 
Of the Civil and Criminal Court of Charleston. 

(232) § 1. Court Established. — A Court inferior to the Circuit Courts, 
and to be known as ''The Civil and Criminal Court of Charleston," is 
hereby established for the city of Charleston, and the territory adjacent 
thereto in the County of Charleston, within the late parish of St. Philips, 
outside of said city, and north of Line street therein between the Ashley 
and Cooper Rivers 

Civ. '12, § 1421; Civ. Pro., '12, § 98. 

(233) § 2. Jurisdiction. — The said Civil and Criminal Court shall 
have such jurisdiction as heretofore provided for by law for the Judicial 
Magistrate's Court in said city and county, and in all civil actions hereto- 
fore cognizable within the said territorial limits, wherein the amount sued 
for or the value of the property claimed, exclusive of costs, does not exceed 
five hundred dollars ; but such jurisdiction shall not extend to cases where 
the title to real estate is in question, nor to cases in chancery, and shall be 
concurrent with the Courts of Common Pleas therein, in matters within the 
jurisdiction of the Court herein established. 

Civ. '12, § 1422; Civ. Pro., '12, § 99; 1911, XXVII, 16; 1912, XXVII, 585. 



OF SOUTH CAROLINA 87 

(234) § 3. Presiding Judge — Compensation. — The Presiding Judge 
of said Civil and Criminal Court shall be an attorney at law, resident 
within said territory, and shall be by the Governor commissioned as such, 
subscribe the oath of office therefor, and shall hold his office for a term of 
four years, and until his successor, who shall be elected in the same man- 
ner as is now provided by law for the election of a Probate Judge in the 
County of Charleston, has been elected and qualified. In the absence or 
disability of the Recorder he is authorized to preside over the Recorder's 
Court for the City of Charleston : Provided, That in case of the disability, 
or inability from any cause, death or resignation of the Judge of said Court, 
the Recorder of the City of Charleston shall temporarily fill the place, 
until the Governor shall fill the vacancy as provided by law for vacancies 
in a county office. He shall receive as compensation for his services the 
sum of eighteen hundred dollars ($1,800.00) per annum, from the time of 
the issuance of his commission, to be paid by the County Treasurer of said 
County of Charleston as the Judicial Magistrate and all other Magistrates 
therein have heretofore and are now paid, and he is prohibited from prac- 
ticing as an attorney in said Court, or any other Court inferior to the Cir- 
cuit Court, except the Probate Court. 

Civ. '12, § 1423; Civ. Pro., '12, § 100; 1911, XXVII, 16; 1912, XXVII, 585; 1913, 
XXVIII, 6 ; 1918, XXX, 755. 

(235) § 4. Ministerial Magistrates. — All summons and other process 
for said Civil and Criminal Court shall be issued exclusively by one of the 
ministerial magistrates in said territorial jurisdiction, except ' in cases 
wherein the amount sued for or the value of the property claimed exceeds 
one hundred dollars, wherein the practice, pleadings, forms and modes of 
procedure of force in the Courts of Common Pleas shall be, and they are 
hereby, made applicable to and to be followed in said Civil and Criminal 
Court. The jurisdiction, powers and duties of the said ministerial magis- 
trates being hereby and in no way increased or diminished, but they are to 
perform the same to the said Civil and Criminal Court as they heretofore 
did to the Judicial Magistrate's Court, and in lieu and stead thereof. 

Civ. '12, § 1424 ; Civ. Pro., '12, § 101 ; 1911, XXVII, 16. 

(236) § 5. Jury Trial, — On the first day of each week preceding the 
week in which jury trials are to be held the docket shall be called, at which 
time any party in any civil cause who shall desire a jury trial, shall at 
that time make demand for the same ; the jury to consist of six persons to 
be empanelled as follows: The Clerk of said Court shall furnish to the 
parties or their attorneys a list of twelve of the jurors to be drawn and se- 
lected by ballot from the whole number of jurors who are in attendance, 
from which lists the parties or their attorneys shall alternately strike until 
there shall be but six left, which .shall constitute the jury to try the case. 
If any person summoned to attend upon said Court shall neglect or refuse 
to appear, without sufficient legal excuse, he shall forfeit and pay to the 
said county a fine of five ($5) dollars, for which judgment may be forth- 
with entered in said Court against him, and execution issued therefor, to- 
gether with the sum of five ($5) dollars cost, for the officer of said Court 
entering such judgment and levying such execution, and such judgment 



88 CODE OF CIVIL PROCEDURE 

and execution shall be of the same force and effect as are all other judg- 
ments and executions for said Court. 

Civ. '12, § 1425; Civ. Pro., '12, § 102; 1911, XXVII, 16; 1912, XXVII, 586; 1913, 
XXVIII, 7. 

(237) § 6. Preparation of Jury Box — Custody. — The County Auditor, 
the County Treasurer and the Clerk of the said Civil and Criminal Court 
shall constitute the Jury Commissioners of said Court, to serve without 
compensation. They shall during the month next succeeding the approval 
of this Act, and thereafter during the month of January next succeeding 
every general election for State officers prepare a list of not less than fifteen 
hundred of the qualified electors residing within the jurisdiction of the 
Court, now or hereafter qualified by law to act as jurors, and shall cause the 
said names each one to be written on a separate piece of paper or ballot, 
and shall fold up such pieces of paper or ballots so as to resemble each 
other as much as possible, so that the name thereon shall not be visible from 
the outside, and shall place them in a jury box to be furnished. by the 
County Commissioners for that purpose, and all names for jurors for said 
Court shall thereafter be drawn from said box in the manner herein pro- 
vided. It shall be the duty of the Clerk of said Court to keep said jury 
box in his custody, and such jury box shall be provided with two locks, 
each different ; a key to one lock shall be kept by the Clerk of said Court, 
and one by the Judge of said Court, so that neither of said parties shall 
hold keys to the same lock. And it shall be. the duty of the County Board 
of Commissioners for the County of Charleston to furnish to the said Jury 
Commissioners above mentioned a jury box of sufficient size and without 
any compartments therein, so that when all the separate pieces of paper 
or ballots aforesaid shall be folded and enclosed therein they may be capa- 
ble of being readily shaken out and intermixed in such box. Not less than 
ten days nor more than twenty days before the first day of each w. n 
which jury trials are to be held, the Judge and Clerk of the said Court s. .Jl 
proceed to draw indiscriminately from the said jury box, twenty persons 
to serve for such week only, and the Clerk of said Court shall issue his writ 
of venire facias for such jurors requiring their attendance on the first day 
of the week for which they have been drawn; and the said writ of venire 
facias shall be forthwith delivered to the Sheriff of Charleston County for 
execution by him and he shall make his returns thereon at least two days 
before the day when the jurors are required to attend : Provided, That 
whenever it shall be necessary to supply any deficiencies in the number of 
jurors duly drawn, the Judge and Clerk of said Court shall draw from 
the jury box such number of jurors as shall be necessary, in which case 
venires shall be served and returned, and jurors required to attend on such 
days as the Court shall direct. 

Civ. '12, § 1426; Civ. Pro., '12, § 10.3; 1911, XXVII, 16; 1912, XXVII, 587. 

(238) § 7. Prosecution Of Criminal Cases. — In all criminal cases the 
prosecution may be represented by any reputable attorney at law, 
employed by the prosecution, or the Solicitor of the Circuit may be 



OF SOUTH CAKOLINA 89 

required to attend and be in charge thereof, in the discretion of the pre- 
siding Judge, or of his own volition. 

Civ. '12, § 1427; Civ.. Pro. '12, § 104; IDll, XXVII, 19. 

(239) § 8. May Punish for Contempt. — The said Civil and Criminal 
Court shall have full power and authority to punish for contempt any 
contempts of its authority, and for such contempt may impose punish- 
ment by fine not exceeding fifty dollars, and imprisonment not exceed- 
ing forty-eight hours, either or both. 

Civ. '12, § 1428; Civ. Pro., '12, § 10.5; 1911, XXVII, 19; 1912, XXVII, 588. 

(240) § 9. Judge May Appoint Clerk — Duties. — The Judge of said 
Court shall have the authority to appoint a Clerk of said Court, who 
shall hold the term of office for two years from date of appointment; said 
Clerk shall also be invested with the same powers and duties as are now 
or which hereafter may be devolved upon Magistrate's Constables. He 
shall give bond and qualify as a constable of- said Court; and shall 
receive as compensation the sum of forty ($40) dollars per month, to be 
paid in the same manner as was paid the salary of the Clerk or Constable 
of the Judicial Magistrate. The duties of said Clerk shall be the same as 
those heretofore performed by the Clerk of the Judicial Magistrate, and 
to preserve order in said Court, and call to his aid a person or persons to 
preserve order therein, who shall be compensated by him out of the fees 
hereinafter provided for ; and such person or persons, when so called, 
shall have the like power of the Magistrate's Constables. 

Civ. '12, § 1429; Civ. Pro., '12, § 106; 1911, XXVII, 20; 1913, XXVIII, 8. 

(241) § 10. Pay of Jurors, Sheriff, Clerk. — Jurors shall receive one 
dollar per day, to be paid by the County Treasurer on the order of the 
Judge and Clerk of said Court. The Sheriff shall be entitled to fifty 
cents for each juror summoned. In civil cases and special proceedings, 
where the amount involved is less than one hundred dollars, there shall 
be paid in advance to the said clerk the sum of fifty cents, and in all 
larger amounts the sum of one dollar, as a docketing fee, and in lieu of 
all other costs in said Court whatsoever. 

Civ. '12, § 1430; Civ. Pro., '12, § 107; 1911, XXVII, 20; 1912, XXVII, 588. 

(242) § 11. Appeal Allowed. — Appeal shall be from the said Civil 
and Criminal Court, in all cases now allowed by law from the ordinary 
Magistrate's Courts, to be presented in the same manner and under the 
same regulations as therein prescribed, except that instead of the testi- 
mony being in all cases taken down in^ writing and signed by the wit- 
nesses, the testimony shall be taken stenographically by a stenographer 
to be appointed by the Judge of said Court, who shall receive as compen- 
sation the sum of two hundred dollars per annum, to be paid by the 
County Treasurer : Provided, That in cases where the amount sued for 
exceeds one hundred dollars, the appellant shall have ten days in which 
to serve notice of appeal. 

Civ. '12, § 1431; Civ. Pro., '12, § 108; 1911, XXVII, 20; 1912, XXVII, 589. 

(2143) § 12. Entry of Judgments, Execution and Transcript. — All 

judgments shall be entered, execution issued thereon, or transcript 



90 CODE OF CIVIL PROCEDURE 

thereof be made, as noAV provided by law for the judgment rendered in 
said Judicial Magistrate's Court. 

Civ. '12, § 1432 ; Civ. Pro., '12, § 109 ; 1911, XXVII, 21. 

(244) § 13. Rule of Practice, Pleadings, Forms and Mode of Pro- 
cedure; and Time for Holding Court. — The rules of practice, pleadings, 
forms and modes of procedure now applicable to and heretofore governing 
the said Judicial Magistrate's Court shall be applicable to and govern the 
said Civil and Criminal Court, except as herein otherwise provided for. 
The said Court shall be held on every day of the week except Monday, 
Saturday, Sunday and public holidays, and may be held on any secular day. 
The week commencing with the first Monday in every month, and such 
other times as the Judge in his discretion may fix, shall be set aside for 
jury trials : Provided, That there shall be no jury trials of civil cases dur- 
ing the months of July, August and September. The place for holding such 
Court shall be provided by the County Commissioners of Charleston 
County, and may be the place at which the Judicial Magistrate's Court has 
heretofore been held, and all books, dockets and other stationery necessary 
for the business of said Court shall likewise be provided by said County 
Commissioners. 

Civ. '12, § 1433; Civ. Pro. '12, § 110; 1911, XXVII, 21; 1912, XXVII, 589; 1913, 
XXVIII, 8. 



CHAPTER VII. 

The City Court and the Police Court of Charleston. 

(245) § 1. Court Held by Recorder of Charleston— Salary.— The 

Court heretofore established and called the City Court of Charles- 
ton shall be held by the Recorder of the City of Charleston ; and the City 
Council shall fix and provide such compensation for the Recorder as may 
be fit and proper, and proportioned to the importance of his station, which 
compensation shall not be increased or diminished during his continuance 
in office, to be paid by the city. 

Civ. '12, § 3874; Civ. '02, § 2777; G. S. 212.5; R. S. 2257; 1801, VII, 300; 1820, VII, 
322; 1903, XXIV, 89. 

(246) § 2. Appointment of Recorder — Term of Office — Sessions of 
Court. — The said Recorder shall be appointed by the City Council of 
Charleston, and hold his commission during good behavior; and he shall 
sit at such times as may be fixed by the ordinances of the City Council of 
Charleston from time to time. 

Civ. '12, § 3875; Civ. '12, § 2778; G. S. 2126; R. S. 2258; 1783, VII, 99; 1856, 
XII, 488. 

His authority is not derived directly from the State, but from the City Council, and his 
commission need not he issued by the State. Eggleston v. City Council, 1 Mill 45. 

(247) § 3. Jurisdiction of Court. — The jurisdiction of the City Court 
of Charleston shall be limited to the trial of causes arising under the ordi- 
nances of the City Council of Charleston. 

Civ. '12, § 3876; Civ. '02, § 2779; G. S. 2127; R. S. 2259; 1856, XII, 488; 1896, 
XXII, 14. 



OF SOUTH CAROLINA 91 

AVhat .iurisdiction exercised. Thomas v. Dyott, 1 McC. 76 ; Jackson v. Watts, 1 McC. 228 ; 
Green v. Smith, 1 McC. 324: Moore r. Brown, 3 McC. 9; Brown v. Overstreet, 4 McC. 79; 
City Council v. Kine:, 4 McC. 487; McKenzie v. Ramsey, 1 Bail. 457; Bartlett v. Brisbane, 
2 Rich, 489; Cromwell v. In. Co.. 2 Rich. 512; City Council v. Stelges, 10 Rich, 438; 
Cohen v. Wigfall, 8 Rich. 237; Charleston v. Oliver, 16 S. C. 47; Information v. Oliver, 
21 S. C. 318. Such Court has no .iurisdiction in cases of attachment. Tolman v. Thompson, 
2 McC. 43; Roddy v. Aiken, Dud. 232. Nor where defendant is not resident in the 
city. Gildersleeve v. Alexander, 2 Speer 298; Whiting v. Pritchard, 1 Rich. 304. Except for 
violation of ordinance. City Council v. Pepper, 1 Rich. 364. Nor in cases involving an amount 
exceeding one hundred dollars. City Council v. Ashley Phosphate Co., 34 S. C. 541, 13 S. E. 845. 

(248) § 4. Jury. — All issues, controversies and litigations in the said 
Court, if demanded by either party, shall be tried by a jury composed of 
six persons, according to the regulations and forms prescribed by law in 
cases of trial by jury, and as hereinafter provided. 

Civ. '12, § 3S77 ; 1903, XXIV, S9. 

(249) § 5. Jury Commissioners for Recorder's Court of City of 
Charleston — Preparation of Jury Box. — The Mayor and the Clerk of City 
Council of Charleston are hereby declared to be the Jury Commissioners 
for the Recorder's Court for the City of Charleston, and shall, within 
ten days after the approval of this Act, and within the first ten days of 
each year thereafter, prepare and place in a box, to be known as the Jury 
Box, the names of five hundred citizens residing within the corporate limits 
of said city eligible to do jury duty and of good moral character, and 
shall lock and keep said jury box convenient for the drawing of a jury, as 
hereinafter specified. If the number of names in the box be reduced to less 
than two hundred names, then the box shall be refilled to the full number 
in the same manner as herein provided : Provided, That no venire facias 
shall at any time issue for more than eighteen jurors to serve at one Court, 
from whom a jury (or two juries, if the Recorder shall regard more than 
one jury necessary for the proper dispatch of the business before the 
Court), shall be empanelled; and in case of non-attendance of the jurors 
so drawn and summoned, their places may be supplied by talesmen, drawn 
in the usual mode ; but no person shall be liable to serve twice until all the 
names in the said jury box shall be drawn out. 

Civ. '12, § 3878 ; 1903, XXIV, 89 ; 1917, XXX, 146. 

(250) § 6. Drawing of Jury. — In all criminal cases in said Recorder's 
Court, in which a jury may be demanded by either the city or the defend- 
ant, a jury shall be selected in the following manner : The Clerk or Act- 
ing Clerk of Recorder's. Court shall draw out of the jury box, referred 
to in Section 5, eighteen ballots, each containing the name of an eligible 
juror, and list the said eighteen names in duplicate, delivering one copy 
of same to the attorney for the city, if he be present; if not, to the Chief 
of Police, or some officer designated by said Chief, and one copy to the 
defendant, or his attorney. 

1917, XXX, 147. 

(251) § 7. Selection of Jury — Challenges. — The said Clerk shall place 
the eighteen ballots, so drawn out, in some box or hat, and said Clerk shall 
shake them together, and then the said Clerk shall draw out one, and the 
person so drawn out shall be one of the jury, unless challenged by either 
party; and so proceed until he shall have drawn six, who shall not have 
been challenged ; neither party being allowed more than six challenges ; but, 



92 CODE OF CIVIL PROCEDURE 

if the first twelve drawn shall be challenged and parties do not agree to 
a choice, the last six shall be the jury, and when any of the six jurors, so 
drawn, cannot be had or are disqualified by law to act in such case, and 
the parties do not supply the vacancy by agreement, the said Clerk shall 
proceed to draw out of said jury box ballots for three times the number 
thus deficient, which shall be disposed of and be drawn as above provided. 
1917, XXX, 147. 

(252) § 8. Qualifications of Jurors. — All persons possessing the qual- 
ifications prescribed for jurors by the laws of the State, and usually resid- 
ing in the city, or who have resided therein for four months before their 
being sworn, and there being at the time of being drawn and summoned, 
shall be liable to serve as jurors in the said Court, saving and reserving 
to all persons all lawful excuse and exemptions as in other Courts. 

Civ. '12, § 3879; 1903, XXIV, 89. 

(253) § 9. City Council and Recorder to Prescribe Rules of Prac- 
tice, Etc. — It shall be lawful for the City Council and the said Recorder 
to prescribe, and from time to time to regulate, the practice of the said 
Court, and of the attorneys therein, conformably to this Chapter, and 
as nearly as may be to the forms and rules used in the Circuit Courts 
of this State, and the proceedings shall be the same substantially as in like 
cases ; except in cases for the violation of ordinances, when imprisonment is 
imposed in addition to or in the alternative of a fine, in which case the 
prosecution shall be in the form of an information on the official oath of the 
Corporation Counsel. 

Civ. '12, § 3880; 1908, XXIY, 89. 

Proceedings on information. Information v. Oliver, 21 S. C. 318; In re Jager, 29 S. C. 
438, 7 S. E. 605. 

(254) § 10. Writs and Processes Shall Be Issued by Clerks. — All writs 
and processes shall be issued by the Clerk of the said Court, and shall be 
made returnable to the first day of the term next succeeding the issuing 
of the same. 

Civ. '12, § 3881; 1903, XXIV, 89. 

Every process must show .iurisdiction. Truchelut v. City Council, 1 N. & McO. 227. Process 
may hear test Ijefore accrual of the right of action. City Council v. Schmidt, 11 Rich. 343. 

(255) § 11. Jurisdiction of Court. — The said Court is invested with 
power and authority to grant rules, to hear and determine motions for new 
trials, in arrest of judgment, and all questions of law arising out of causes 
within its jurisdiction; to issue subpoenas for the attendance of witnesses, 
to grant commissions for the examination of witnesses, to issue executions 
of fieri facias against the real and personal property of defendants, to issue 
writs of capias ad respondendum, to punish for contempt, and also all other 
the usual process, according to the known and approved rules of the com- 
mon law and of the Acts of the Assembly in such cases provided ; the Re- 
corder shall have the same powers in the discharge of his duties as the 
Judges of the Court of Sessions and Common Pleas in like cases : but it is 
hereby declared and provided that no process or writ issuing out of the said 
Court shall extend or be of force for service or execution out of the limits 
of the said city, except commissions to examine witnesses; and all writs 



OF SOUTH CAKOLINA 93 

shall be served and returned ten days before the sitting of the Court afore- 
said. 

Civ. '12, § 3SS2; 1903, XXIV, 89. 

Commission to examine witnesses. Haviland ?-. Simons, 4 Rich 338. 

(256) § 12. Right of Appeal. — All parties shall have the same right 
of appeal to the Supreme Court from the decisions of the said City Court, 
in the same form which is now or may be lawful for parties in the Circuit 
Courts in like cases, and the Supreme Court shall hear and determine 
such appeals in the same manner as appeals from the Circuit Court of 
Charleston County. 

Civ. '12, § 3S83; 1903, XXIV, 89. 

City Council v. Weller, 34 S. C. 357, 13 S. E. 628. 

(257) § 13. Judgments to Be Transferred to Circuit Court Offices. 

— All judgments in the office of the Clerk of the said City Court, and all 
executions, writs and processes in the office of the Sheriff of the City of 
Charleston, other than judgments, executions and processes arising under 
the ordinances of the City Council of Charleston, shall be transferred, re- 
spectively, to the offices of the Clerk of the Circuit Court and of the Sheriff 
of the County of Charleston, which causes, judgments, executions, writs 
and processes shall be of like validity and force as if the same had orig- 
inated or been sued out of the Circuit Court for the said County. 

Civ. '12, § 3884 ; 1903, XXIV, 89. 

City Council v. Weller, 34 S. C. 357, 13 S. E. 628. 

(258) § 14. Clerk and Sheriff to Have Same Powers as Those of Cir- 
cuit Court. — The Clerk and Sheriff of the said City Court of Charleston 
shall have the same powers and authority in all cases within the jurisdic- 
tion of the said Court as the Clerks and Sheriffs of the Circuit Courts. 

Civ. '12, § 3885 ; 1903, XXIV, 89. 

(259) § 15. To Draw Jury in Recorder's Absence. — In case of the 
sickness or absence from the State of the Recorder, they shall have power, 
and are hereby authorized and required to draw juries for the succeeding 
term. 

Civ. '12, § 3886; 1903, XXIV, 89. 

(260) § 16, Fees the Same as Circuit Court. — The charges and fees of 
the several officers of the City Court, shall be the same as in the Circuit 
Court in like cases. 

Civ. '12, § 3887 ; 1903, XXIV, 89. 

(261) § 17. PoUce Court Established. — There shall be established a 
Court in the City of Charleston known as the Police Court of the City of 
Charleston, which shall be held by the Recorder of the City of Charleston. 
The said Recorder, and any Magistrate holding the Police Court of the City 
of Charleston, in the case of absence, sickness or other disability of such 
Recorder, is invested with jurisdiction to hear and determine all cases of 
a criminal nature occurring within the limits of the City of Charleston, 
which are not within the exclusive jurisdiction of the Court of General 
Sessions : that is to say, any such officer holding the Police Court shall have 



94 CODE OF CIVIL PROCEDURE 

jurisdiction of all offenses committed within the limits of the City of 
Charleston on arrest by the police or municipal authorities, which may be 
subject to the penalties of fine or forfeiture not exceeding one hundred 
dollars, or imprisonment, with or without hard labor, not exceeding thirty 
days, and may impose any sentence within these limits singly or in the 
alternative. 

Civ. '12, § 3SSS ; 1903, XXIV, 89. 

(262) § 18. Examination of Persons Arrested in Police Court. — Upon 
the sworn information of any member of the police force or municipal 
officer, any such officer holding the said Police Court as aforesaid, shall 
proceed to the examination of any charge against any person arrested and 
brought before him, and upon the same appearing not to be within the 
jurisdiction of the said Police Court, he shall refer the same to a Minis- 
terial Magistrate as such for examination, to be by such Ministerial Mag- 
istrate referred to the Civil and Criminal Court of Charleston, or Court 
of General Sessions, as may be proper. 

Civ. '12, § 38S9; Civ. '02, § 2781; 1897, XXII, 412; 1903, XXIY, 89; 1911, XXVII, 
21. 

(263) § 19. Forfeiture of Deposit in Police Court. — Upon any charge 
made as above against any person released on deposit and not appearing 
when called, any such officer holding the said Police Court shall order the 
said deposits forfeited. 

Civ. '12, § 3890; Civ. '02, § 2782; 1903, XXIV, 89. 

(264) § 20, Jury May Be Demanded in Police Court. — In the trial of 
any case in the said Police Court, upon the demand for a jury, the same 
shall be summoned and empanelled in the said Police Court, in accordance 
with the law for empanelling juries in Magistrates' Courts. 

Civ. '12, § 3891 ; Civ. '02, § 2783 ; 1903, XXIV, 89. 

(265) § 21. Sworn Steno^apher May Transcribe Testimony in Police 
Court. — In taking of testimony and preparation of the record in cases of 
appeal from the said Police Court, the transcript of the notes of the testi- 
mony taken of the trial by a sworn Stenographer shall be held to be equiv- 
alent to the testimony signed by the witnesses, and the Recorder is hereby 
authorized and empowered to appoint a suitable person as official Stenog- 
rapher of said Police Court, who, after deing duly sworn, shall take all 
testimony before said Police Court. 

Civ. '12, § 3892 ; Civ. '02, § 2784 ; 1903, XXIV, 89. 

(266) § 22. Police Officer to Be in Attendance.— It shall be the duty 
of one of the officers of the police force to be in constant attendance on 
said Court, and to take proper measures for the safe keeping of the pris- 
oners and for carrying into effect the orders of said Court. 

Civ. '12, § .3893 ; Civ. '02, § 278-5 ; 1903, XXIV, 89. 

(267) § 23. Recorder Not to Appear in Any Cause Heard by Him. 

— The said Recorder shall not be permitted to plead in a Superior Court 
in any cause which has been argued before or adjudged by him. The Re- 
corder is hereby clothed with all the powers, duties and jurisdiction of a 



OF SOUTH CAROLINA 95 

Judicial Magistrate, except that he shall not receive any additional com- 
pensation, and shall not have the authority of a Magistrate to appoint a 
Constable. In case of the sickness or other unavoidable absence of the Re- 
corder, the Police Court shall be held by one of the Aldermen of the City 
of Charleston, or by one of the Magistrates for Charleston County, as may 
be designated by the Mayor. 
Civ. '12, § 3894; 1903, XXIV, 89. 



CHAPTER Vm. 

Attorneys, Solicitors and Counsellors. 

(268) § 1. Penalty for Practicing Unless Admitted and Sworn. — No 

person whatsoever shall practice or solicit the cause of any other person 
in any Court of this State unless he has been admitted and sworn as 
an attorney, under a penalty of five hundred dollars for every cause he 
shall so solicit, one-half to the State and the other half to him or them 
that will sue for the same. 

Civ, '12, § 3908; Civ. '02, § 2811; G. S. 2159; R. S. 2287; 1721, VII, 173. 

Practicing law defined. In re Duncan, 83 S. C. 186, 65 S. E. 210, 18 Am. & Eng. Ann. Cas. 
657, 24 L. R. A.. N. S., 750n. 

(269) § 2. License to Be G-ranted Only by Supreme Court. — No orig- 
inal license to practice as an attornej^, solicitor or counsellor shall be 
granted except by the Supreme Court. 

Civ. '12, § 3909; Civ. '02, § 2812; G. S. 2161; R. S. 2288; 1878, XVI, 472. 

(270) § 3. Supreme Court to Appoint Law Examiners to Examine 
Applicants. — All applications for admission to the bar in the State shall 
be made by petition to the Supreme Court. A State Board of Law Ex- 
aminers is hereby created to consist of three members of the bar, of at least 
ten years standing, who shall hold office for the term of three years. Said 
appointment shall be made as follows : The Supreme Court shall appoint 
three law examiners, who must be actually engaged in the practice of law. 
Said examiners shall hold office for one, two and three years, respectively, 
to be designated by the Justices of the Supreme Court. After the first ap- 
pointment the Supreme Court shall annually appoint a member of said 
Board in the place of the examiner whose term shall expire. Members of 
said Board shall be eligible to reappointment for the term of three years. 
In case of any vacancy in said Board by reason of death, resignation or 
otherwise, the Supreme Court shall fill said vacancy by the appointment of 
a member of said Board to serve until the expiration of the term for which 
the person so dying or resigning had been appointed. Not more than one 
member of said Board shall be appointed from any one Congressional Dis- 
trict. 

Civ. '12, § 3910; 1910, XXVI, 750. 

(271) § 4. Examination — Report — Oath, — All applications for ad- 
mission to the bar shall be referred by the Supreme Court to the State 
Board of Law Examiners, who shall examine the applicant, touching his 
qualifications for admission to the bar. The said Board shall report their 



96 CODE OF CIVIL PROCEDURE 

proceedings in the examination of applicants to the Supreme Court, with 
any recommendations said Board may desire to make. If the Supreme 
Court shall then find the applicant to be qualified to discharge the duties 
of an attorney, and to be of good moral character and worthy to be admit- 
ted, they shall pass an order admitting him to practice in the Courts of this 
State, on his taking and subscribing the oath required by Section 26, Article 
III of the Constitution, and the oath respecting dueling. 
Civ. '12, § 3911; 1910; XXVI, 750. 

(272) § 5. Qualifications. — Every applicant for admission must pre- 
sent to the Board of Examiners satisfactory proof, in writing, by examina- 
tion, or otherwise, as the Board may direct, that he has had a preliminary, 
general education, equivalent to that of a graduate of a high school of this 
State, and must also present such proof as the Board directs that he has 
studied law in a law school in any part of the United States, or in the office, 
under the direction of a member of the bar of this State, for a period of 
two years, during at least thirty-six weeks in each year : Provided, That if 
the applicant produces satisfactory proof to the Board that he has studied 
law in a law school in any part of the United States, or in the office, or 
under direction of a member of the bar of this State for a period of two 
years, during at least thirty-six weeks in each year, such applicant shall be 
eligible to admission to practice law in this State upon standing a satis- 
isfactory examination before said Board. And each application shall be 
accompanied by an application fee of five dollars to be paid to the Clerk, 
and should the applicant be admitted to practice he shall pay an addi- 
tional fee of five dollars as an admission fee, to be paid to the State Treas- 
urer: Provided, further, That women shall be allowed to practice law 
within the State of South Carolina under the same rules, regulations and 
conditions prescribed for the men of the said State. 

Civ. '12, § 3912 ; 1910, XXVI, 750 ; 1918, XXX, 779. 

(273) § 6. Compensation of Board. — Each member of the Board of 
Law Examiners shall receive as compensation for his service the sum of one 
hundred and fifty dollars per annum, to be paid as the salaries of other 
State officers are paid. No other or further charges or fees shall be de- 
manded of or collected from a person upon his admission to practice than 
the fees mentioned in Section 5. 

Civ. '12, § 3913; 1910, XXVI, 750. 

(274) § 7. Rules. — The Justices of the Supreme Court shall have the 
power to pass such rules as may be necessary to carry into effect the pro- 
visions of this Chapter, and from time to time amend said rules as occa- 
sion may require. The said Board of Examiners may also make rules for 
their conduct and government, not inconsistent with the provisions of law, 
subject to the approval of the Supreme Court. 

Civ. '12, § 3914 ; 1910, XXVI, 750. 

(275) § 8. Attorneys from Other States. — Members of the bar of any 

State, District or Territory of the United States, who, for five years after 
admission, have been engaged as practitioners, judges or teachers of law, 
shall be admitted without examination on proof of good moral character, 



OF SOUTH CAROLINA 97 

after becoming actual residents of this State. Members of the bar of any 
other State, District or Territory of the United States, who may be em- 
ployed as counsel in any case pending before any of the Courts of this 
State, may be admitted for all the purposes of the case in which they are so 
employed by the Court before which said case is pending, without exam- 
ination. Nothing herein contained shall be construed to deprive Courts of 
this State of the power, as at present existing, of disbarring or otherwise 
punishing members of the bar. 
Civ. '12, § 391.5 ; 1910, XXVI, 750. 

(276) § 9. Graduates of Law School of University of South Carolina 
Excepted.— The provisions of Sections 3-8, inclusive, shall not apply to 
graduates of the Law Department of the University of South Carolina, but 
such graduates, upon the production of diplomas of graduation and sat- 
isfactory evidence of good moral character, shall be admitted as hereto- 
fore. 

Civ. '12, § 3916 ; 1910, XXVI, 7.50. 

(277) § 10. Oath — Roll. — ^The oaths required to be taken by this 
Chapter shall be administered in open Court, and the name of the person 
taking the same entered in a roll or book kept for that purpose, and a 
certificate of said oaths shall be filed in Court. 

Civ. '12, § 3917 ; Civ. '02, § 2814 ; G. S. 2162 ; R. S. 2290 ; 1868, XIV, 96. 

(278) § 11. Removal or Suspension. — Attorneys, solicitors, and coun- 
sellors, n^ay be removed or suspended, and, also, in aggravated cases, 
imprisoned, not exceeding twenty-four hours, by the several Courts in 
which they have been admitted to practice, if, in the presence of such Court, 
they are guilty of any disorderly conduct causing an interruption of busi- 
ness or amounting to an open and direct contempt to the Court, his au- 
thority or person ; but, subject to such removal, they shall hold their office 
for life. 

Civ. '12, § 3918; Civ. '02, § 2815; G. S. 2163; R. S.. 2291; 1868, XIV, 97. 

Disbarment of attorneys. In re Duncan, 64 S. C. 461, 42 S. E. 433, 83 S. C. 186, 65 
S. E. 210, 18 Am. & Eng. Ann. Gas. 657, 24 L. R. A., N. S., 750n. 

(279) § 12. Cause of Removal — Entitled to Be Heard. — Any attor- 
ney, solicitor, or counsellor, may be removed or suspended who shall be 
guilty of any deceit, malpractice, or misbehavior; but not until a copy of 
the charges against him shall have been delivered to him by the Clerk of 
the Court in which the proceedings shall be had, and an opportunity shall 
have been given him of being heard in his defense. 

Civ. '12, § 3919; Civ. '02, § 2816; G. S. 2164; R. S. 2292; 1868, XIV, 97. 

State V. Holding, 1 McC. 379; Hvnmen v. Washington, 2 McC. 493; Watson v. Bank, 5 
S. C. 159. 

(280) § 13. Penalty for Speculating. — If any attorney, solicitor, or 
counsellor, shall enter into any speculating practices, by purchasing or pro- 
curing to be purchased, any note or other demand for the purpose of put- 
ting the same in suit, when otherwise the owner or holder thereof would not 
sue the same such attorney, solicitor or counsellor, shall pay a fine of one 

8 C C P 



98 CODE OF CIVIL PROCEDURE 

hundred dollars, and shall thereafter be incapable of practicing as such in 
any Court, until restored by the Supreme Court. 

Civ. '12, § 3920; Civ. '02, § 2817; G. S. 2165; R. S. 2293; 1868, XIV, 97. 

Cooke r. Poole, 25 S. C. 593. 

(281) § 14. Not to Argue Longer Than Two Hours. — No attorney, so- 
licitor, or counsellor, shall be allowed to occupy more than two hours of 
the time of the Court in the argument of any cause, unless he shall first 
obtain the special permission of the Court to do so. 

Civ. '12, § 3921 ; Civ. '02, § 2818 ; G. S. 2166 ; R. S. 2294 ; 1868, XIV, 97. 

State V. Jones, 29 S. C. 201. 7 S. E. 296. 

(282) § 15. Citizens May Appear in Person or for Others Without 
Reward. — This Chapter shall not be construed so as to prevent a citizen 
from prosecuting or defending his own cause, if he so desires, or the cause 
of another, with leave of the Court first had and obtained : Provided, That 
he declare on oath, if required, that he neither has nor will accept or take 
any fee, gratuity, or reward, on account of such prosecution or defense, or 
for any other matter relating to the said cause. 

Civ. '12, § 3922; Civ. '02, § 2819; G. S. 2167; R. S. 2295; 1721, VII, 173; 1868, 
XIV, 97. 

(283) § 16. Disbarment Procedure. — The permanent Committee on 
Grievances of the South Carolina Bar Association is hereby constituted a 
Commission of Inquiry with full power and authority to investigate as to 
the existence of any probable cause against any member of the Bar of South 
Carolina as to conduct contrary to law. 

1914, XXVIII, 588. 

(284) § 17. Committee May Cite Such Member of Bar to Appear 
Before It. — The said Committee is hereby authorized and empowered, if 
any sworn complaint shall be preferred in writing before it, and filed with 
its Chairman, against any member of the Bar of South Carolina for mis- 
conduct as an attorney at law, to cite such member of the bar to appear 
before it at such convenient place in the State as may be designated by the 
Chairman of the Committee to show cause why he should not be presented 
to the Supreme Court on such charges for disbarment or suspension: Pro- 
vided, That the Committee shall only investigate such complaints as in the 
opinion of a majority of the Committee deserve consideration. 

1914, XXVIII, 589. 

(285) § 18. Committee Make Investigation of Its Own Motion. — The 

said Committee, without the filing of any written complaint with its Chair- 
man may, of its own motion upon a vote of a majority of the Committee, 
enter into the investigation of any misconduct of any member of the Bar 
with the same procedure as if a written complaint had been filed. 
1914, XXVIII, 589. 

(286) § 19. Powers of Committee. — The said Committee is hereby 
authorized and empowered in the investigation of such matters as shall 
come before it to summon all necessary witnesses for such investigation, 
being hereby granted the authority to issue requisite process therefor, and 



OF SOUTH CAROLINA 99 

that said witness shall be paid the same per diem and mileage as is allowed 
all witnesses in the Courts of Common Pleas in this State, the same to be 
paid by the county authorities of the county from which the complaint 
arises, upon the certificate of the Chairman of the said Grievance Com- 
mittee ; and that the same right of pay for witnesses shall exist in case of 
any trial of such matter before the Supreme Court, hereinafter referred 
to, upon the certificate of the Clerk of the Supreme Court ; that said Com- 
mittee in such investigation and leading up thereto, shall have the power 
to require the production of all papers and documents, and the power to 
punish witnesses for contempt, or any contempt from any person that may 
arise during said investigation before the said Committee ; that said Com- 
mittee is also authorized through its presiding member to swear all wit- 
nesses with the oath usually administered in the Courts of Justice in this 
State. 

1914, XXVIII, 589. 

(287) § 20. Majority of Committee Must Be Present.^Before any of 
such charges as aforesaid can be investigated by said Committee a majority 
of said Committee, as appointed by the South Carolina Bar Association, 
must be present, and if the chairman thereof be absent the other members 
of the committee are authorized and empowered to select a temporary 
chairman. 

1914, XXVIII, 589. 

(288) § 21. Complainants and Respondents May Have Counsel. — At 

such hearings as aforesaid authorized, the complainants shall be allowed, if 
they so desire, to have counsel present and so shall the respondents, with 
the right to either side to produce witnesses to be sworn and heard accord- 
ing to such rules and regulations as may be adopted by the said Commit- 
tee. 

1914, XXVIII, 590. 

(289) § 22. When Committee to Turn Over Records to Clerk of Su- 
preme Court. — If said Committee, or a majority of those sitting in said 
investigation, conclude that a reasonable probability exists for the charges 
made, they shall turn over to the Clerk of the Supreme Court of South 
Carolina the record in the case for such action as said Court shall take 
thereon according to law and the existing laws of this State as to the reg- 
ulation of the conduct of the members of the Bar of the State of South 
Carolina, and that said Court shall notify the Attorney General and the 
Solicitor of the Circuit from which the case arises so that they shall appear 
before the Court as the representatives of the State. 

1914, XXVIII, 590. 



CHAPTER IX. 

Special Provisions Respecting Courts and Administration of Justice. 
(290) § 1. When Judge Disqualified. — No Judge or other judi- 



100 CODE OF CIVIL PROCEDURE 

cial officer shall preside on the trial of any cause where he may be connected 
with either of the parties, by consanguinity or affinity, within the sixth 
degree. 

Civ. '12, § 3923 ; Civ. '02, § 2820. 

Method of computing degree of relationship. Ex parte Ki-eps, 61 S. C. 29, 39 S. E. 181. 
Relationship by affinity must be shown to continue. Ehrhardt v. Breeland, 57 S. C. 142, 35 
S. E. 537. 

Party knowing of disqualification, and not objecting to hearing before Judge, waives the right 
to object. Ex parte Hilton, 64 S. C. 201, 41 S. E. 978. Town of Clinton v. Leake, 71 S. 0. 
22, 50 S. E. 541. Second cousins are within the sixth degree. State v. Byrd, 72 S. C. 
104, 51 S. E. 542. 

(291) § 2. Rights in Court Not Affected by Race or Color.— Wher- 
ever authority has heretofore been conferred by law upon any free white 
person or persons to institute any suit or proceedings, or to prefer any 
information or complaint in any matter, civil, penal, or criminal, the same 
rights shall be enjoyed by, and the same remedies applicable to, all per- 
sons whatsoever, regardless of race or color, subject to the same conditions, 
and none others. 

Civ. '12, § 3924; Civ. '02, § 2821; G. S. 2168; R. S. 2297; 1870, XIV, .338. 

(292) § 3. Persons Appointed by United States May Prosecute in 
Behalf of United States^ — Proviso. — It shall and may be lawful for all 
and every person or persons authorized and appointed by the United States 
for that purpose, in their name, and in their behalf, to commence and to 
prosecute to final decree, judgment, and execution, any action or actions, 
for the recovery from individuals of debts due, and effects belonging to, 
the United States : Provided, That all and every such action shall be con- 
ducted in the same manner, and subject to the same rules and regulations, 
as when commenced by one citizen of this State against another citizen 
thereof, and that the defendant or defendants be allowed the same priv- 
ileges and advantages as he, she, or they would be entitled to if sued by a 
citizen of this State. 

Civ. '12, § .3925 ; Civ. '02, § 2822 ; G. S. 2169 ; R. S. 2298 ; 1785, IV, 667. 

(293) § 4. Seals of Courts of Common Pleas.— The Courts of Com- 
mon Pleas shall, at the expense of the State, have a seal for each County, 
of an impression similar to that of the Court of Common Pleas in Charles- 
ton County, and uniform with that seal; except that each seal shall in 
the legend have the name of the Court in which it is used. The said seals 
shall always be affixed to such proceedings of the said respective Courts 
as may require the same. 

Civ. '12, § 3926 ; Civ. '02, § 2823 ; G. S. 2170 ; R. S. 2299 ; 1792, V, 211. 

(294) § 5. Attendants at Courts Exempt From Arrest. — All persons 
necessarily going to, and attending on, or returning from, the Courts of 
Record of this State (allowing thirty miles per day for the traveling of 
such persons), shall be free from arrest, except on criminal process for 
treason, felony, or breach of the peace. 

Civ. '12, § 3927; Civ. '02, § 2824; G. S. 2171; R. S. 2300; 1785, VII, 219; 1798, 
VII, 286; 1819, XI, 41. 

This exemption from arrest is the privilege of the Court, and not of the party; and 
indulgence to him will not be extended to him further than necessary and expedient. Hunter v. 
Cleveland, 1 Brev. 167. And one Court will not allow arrest by its process of a witness 
of another Court. Vincent v. Watson, 1 Rich. 194. The privilege is limited to exemption of 
the person from arrest, and does not invalidate service of process at same time. Sadler v. 
Ray, 5 Rich. 523. 



OF SOUTH CAROLINA 101 

(295) § 6. Penalty of Contempt of Court — Offenders to Be Heard. 
— In case any person shall commit any misbehavior or contempt in any 
Court of judicature in this State, by word or gesture, it shall and may 
be lawful for the Judges of every such Court to set a fine on such offender, 
in any sum not exceeding fifty dollars, for the use of this State, and may 
commit the offender till payment ; but if any person shall in the presence 
and during the sitting of the Court, strike or use any violence therein, such 
person shall be fined at the discretion of the said Court, and shall be com- 
mitted till payment : Provided, That no citizen of this State shall be sent 
to jail for any contempt of Court, or supposed contempt of Court, com- 
mitted during the sitting of the Court, and in disturbance of the Court, 
until he be brought before the Court, and there be heard by himself or 
counsel, or shall stand mute. 

Civ. '12, § 392S; Civ. '02, § 282,5; G. S. 2172; R. S. 2301; 1731, III, 283; ISll, 

V, 642. 

As to Magistrate Courts. LLiing v. Bentham, 2 Bay 1: State v. Johnson, 2 Bay 385; State v. 
Applegate, 2 McC. 110: Edmiindson r. Freean, 2 Hill, 410. As to Circuit Courts. Lott v. 
Landifer, 2 Mill 167; Johnson v. Williman, Dud. 70: State v. Hunt, 4 Strob. 322; In re 
Corbin, 8 S. C. 690: State v. Blackwell. 10 S. C. 35. As to attorneys. State v. Hunt, 
4 Strob. 322. Tn rp. Corbin, 8 S. C. 390. As to witnesses. Lott v. Landifer, 2 Mill 167; 
Johnson r.. Williman. Dud. 70. As to others. State v. Blackwell, 10 S. C. 35. Proceedings by 
rule is proper in cases of contempt. State r. Hunt, 4 Strob. 322. In cases here mentioned 
it need not be on oath. State v. Blackwell, 10 S. C. 35. Decision thereon is appealable. 
State V. Hunt, 4 Strob. 322. 

(296) § 7. Breach of Peace Within Hearing of Court. — When any af- 
fray shall happen during the sitting of any Court within this State, and 
within the hearing or to the disturbance of the Court, the Court shall order 
the Sheriff, or other lawful officer, to take the affrayers, or other disturbers 
of the peace, or those guilty of contempt, and bring the offender or offend- 
ers before the Court, and the Court shall make such order or orders thereon 
as is or may be consistent with law, justice, and good order. 

Civ. '12, § 3929 ; Civ. '02, § 2826 ; G. S. 2173 ; R. S. 2302 ; 1811, V, 642. 

(297) § 8. Witness, Jurors, or Party, May Affirm, According to His 
Profession. — Any juror, witness, or party to any proceeding, in any and 
all Courts of this State, may make solemn and conscientious affirmation 
and declaration, according to the form of his religious belief or profes- 
sion, as to any matter or thing whereof an oath is required; and such 
affirmation and declaration shall be held as valid and effectual as if such 
person had taken an oath on the Holy Evangelists. 

Civ. '12, § 3930; Civ. '02, § 2827; G. S. 2174; R. S. 2303; 1721, III, 281. 

(298) § 9. Moneys Paid Into Court to Be Deposited. — All moneys 
except fines and penalties paid under sentence in criminal cases, which 
shall be paid into the Circuit or Probate Courts of the State, or received by 
the officers thereof in causes pending therein, shall be immediately deposited 
in some incorporated State bank or National bank within the Circuit, of 
good credit and standing; or, if there be no such bank within the Circuit, 
then in such bank nearest to the place of holding the Circuit, in the name 
and to the credit of the Court. 

Civ. '12, § 3931; Civ. '02, § 2828; G. S. 2175; R. S. 2304; 1868, XIV, 16. 

(299) § 10. How Money Deposited to Be Drawn — Proviso. — No 

money deposited as aforesaid shall be drawn from said banks, except by 



102 CODE OF CIVIL PROCEDURE 

order of the Judge of said Courts, respectively, in term or in vacation, to 
be signed by such Judge, and to be entered and certified of record by the 
Clerk ; and every such order shall state the cause in or on account of which 
it is drawn : Provided, That money paid into Court to be immediately paid 
out need not be so deposited, but shall be paid upon order of the Court. 
Civ. '12, § 3932; Civ. '02, § 2S29; G. S. 2176; R. S. 2305; 1868, XIV, 16. 

(300) § 11. Clerk to Obey Order of Court to Deposit— Penalty.— If 

any Clerk of such Courts, or other officers thereof, having received such 
moneys as aforesaid, shall refuse or neglect to obey the order of such Court, 
for depositing the same as aforesaid, such Clerk or other officer shall be 
forthwith proceeded against by attachment for contempt. 

Civ. '12, § 3933 ; Civ. '02, § 2830 ; G. S. 2177 ; R. S. 2306 ; 1868, XIV, 16. 

(301) § 12. Effect on Writs, Etc., of Failure of Court to Sit as Required 
by Law. — No process pending in any Court shall be discontinued for 
or by reason of the failure to hold the Court upon the day appointed by 
law; but in such case, all suits, process, matters and things depending shall 
be made to the next succeeding Court in course in the same manner as if 
such succeeding Court had been the same Court to which such process 
stood continued, or such returns or appearances should have been made ; 
and recognizances, bonds and obligations for appearances, and all returns 
shall be of the same force and validity for the appearance of any person 
or persons at such succeeding Court, and all summons for witnesses as 
effectual as if the succeeding Court had been expressly mentioned therein ; 
and all causes depending on the docket, and undetermined at any ad- 
journment to the Court in course, shall stand continued in the same order 
to such Court as fully as if such causes were called over and continued 
by order of Court. 

Civ. '12, § 3934 ; Civ. '02, § 2831 ; G. S. 2178 ; R. S. 2307 ; 1785, VII, 218. 

(302) § 13. Transcripts of United States Courts' Decrees and Judg- 
ments Filed in Clerk's Office, Etc. — ^Transcripts of judgments and decrees 
rendered in the Circuit and District Courts of the United States within 
this State may be filed and docketed in the offices of the Clerks of the Courts 
of Common Pleas in the several counties of this State, for the purpose of 
creating liens of such judgments and decrees upon property within the 
county where the same may be so filed and docketed, in like manner as the 
judgments and decrees of said Courts of Common Pleas and transcripts 
thereof may be entered, filed and docketed for the purpose of creating liens 
upon property, but in no other manner, and to no greater extent, as con- 
templated, provided and intended by the Act of Congress entitled ''An Act 
to regulate the liens of judgments and decrees of the Courts of the United 
States," approved August 1, 1888. And it shall be the duty of the Clerks 
of the said Courts of Common Pleas, when transcripts of judgments or 
decrees of said Circuit or District Courts shall be filed with them, to docket 
and index the same as judgments of the said Courts of Common Pleas are 
required to be docketed and indexed. 

Civ. '12, § 3985 ; Civ. '02, § 2832 ; 1894, XXII, 718. 



OF SOUTH CAROLINA 103 

(303) § 14. Money May be Deposited with Officer of Courts in Lieu 
of Bond. — Whenever in any civil or criminal proceedings in any of the 
Courts of this State a bond, recognizance or undertaking is authorized 
or required to be given, it shall and may be lawful for the party or 
parties authorized or required to give the same to deposit in lieu thereof 
a sum of money, in lawful money of the United States of America, equal 
in amount to the bond, recognizance or undertaking so required or au- 
thorized to be given ; and such sum of money, when deposited as in this 
Section provided, shall be held and taken as equivalent in all respects 
to the giving of such bond, recognizance or undertaking. 

Civ. '12, § 3936; Civ. '02, § 2S33; 1897, XXII, 424. 

(304) § 15. To Whom a Deposit in Lieu of Bond Must Be Paid.— 

Whenever such bond, recognizance or undertaking is required or au- 
thorized to be given in any civil or criminal proceedings in the Courts 
of Common Pleas or General Sessions of this State, the said sum of 
noney deposited in lieu thereof shall be paid to the Clerk of the Court 
(if Common Pleas and General Sessions in which said proceeding is pend- 
ing; and whenever such bond, recognizance or undertaking is authorized 
or required to be given in the Supreme Court of this State, the said 
•lum of money shall be paid to the Clerk of the Supreme Court; and 
^vhenever such bond, recognizance or undertaking is authorized or re- 
quired to be given in any civil proceeding in the Probate Courts of this 
State, the said sum of money shall be paid to the Judge of the Court of 
Probate for the County in which the said proceeding is pending ; and when- 
ever such bond, recognizance or undertaking is authorized or required 
to be given in any civil or criminal proceeding in a Magistrate's Court 
or other Court of inferior jurisdiction, such sum of money shall be paid 
to the Clerk of the Court of Common Pleas and General Sessions for the 
County in which such Magistrate's Court or other Court of inferior 
jarisdiction shall be. 

Civ. '12, § 3937; Civ. '02, § 2834; 1897, XXII, 424. 

(305) § 16. Receipt for Money Deposited in Lieu of Bond. — When- 
ever any sum of money is so deposited in lieu of a bond, recognizance 
or undertaking, the party depositing the same shall be entitled to a receipt 
therefor, stating that the same has been deposited, and is held for the 
same purpose as would have been specified and conditioned in the bond, 
recognizance or undertaking in lieu whereof the said sum of money is so 
deposited. 

When Money Deposited in Lieu of Bond to Be Paid Back. — The party 
or parties so depositing a sum of money in lieu of a bond, rt^cognizance, 
or undertaking shall be entitled upon application to the respective Courts 
wherein such deposits have been made, and subject to the order of which 
such funds are held, to receive back the same whenever the purposes for 
which the same have been received and deposited have been accomplished 
and the parties are entitled to repayment thereof. 

Civ. '12, § 3938; Civ. '02, § 2835; 1897, XXII, 424. 



104 CODE OF CIVIL PROCEDURE 

(306) § 17. Courts May Order Payment of Money to Minors, Etc. 

— In cases where a minor becomes entitled to a sum of money not ex- 
ceeding one hundred dollars in the settlement of estates, or under the 
judgment, order or decree of any Court, and such minor has no general 
or testamentary guardian to whom such sum may be paid, and whose 
estate, however derived, is, in the judgment of the Court in which the 
settlement is made, or the judgment, order or decree is rendered, too 
small to warrant the expense of the appointment of a guardian, it shall 
and may be lawful for such Court, or the Judge thereof, to make an order 
for the same to be paid to the minor, or the father or mother of such 
minor, or if the father and mother be dead, to some other person for the 
benefit of such minor as to such Court or Judge may seem best. 

Civ. '12, § 3939; Civ. '02, § 2836; 1900, XXIII, 348; 1901, XXIII, 635; 1910, XXVI, 
683. 

(307) § 18. Time Prescribed Within Which Masters and Referees 
Must File Reports — Penalty — Extension. — In all cases referred to Mas- 
ters and Referees by the Courts of Common Pleas, as now provided by 

law, the Masters or Referees shall make and file with the Clerks of the 
(burts of Common Pleas of their respective counties their reports within 
sixty days from the time the action shall be finally submitted to them, 
a nd in default thereof they shall not be entitled to any fees : Provided, 
That nothing herein contained shall prevent parties to said action or 
their attorneys from extending the time by mutual consent in writing. 
Civ. '12, § 3940; Civ. '02, § 2837; 1893, XXI, 399. 



PART II 



Of Civil Actions/ 



Fomi of Civil Actions, 105. 

Time of Commencing Civil Actioiiis, 106. 

Parties to Civil Actions, 119. 

Of the Place of Trial of Civil Actions, 129. 

Manner of Commencing Civil Actions, 133. 

Of the Pleadings in Civil Actions, 143. 

Of the Provisional Remedies in Civil Actions, 170. 

Of the Trial and Judgment in Civil Actions, 201. 

Of the Execution of the Judgment in Civil Actions, 233. 

Of the Costs in Civil Actions, 245. 

Of Appeals in Civil Actions, 249. 

Of the Miscellaneous Proceedings in Civil Actions, and Mis- 
cellaneous Provisions, 265. 

Actions in Particular Cases, 297. 

Of Proceedings for the Relief of Persons Arrested in Civil 
Actions, 305. 

Of Certain Remedies Relating to Real Property, 311. 

General Provisions, 318. 

*This part, as to appeals, does not apply in criminal cases: they are governed by the old 
practice before the Code. State v. Pitts, 12 S. C. 180. It applies only to Courts of Common 
Pleas, except when express reference is made to inferior Courts. Doty r. Duvall, 19 S. C. 143. 
Nor does it apply to proceedings by prohibition or 'inandamus. S. C. Society i'. Gerney, 3 
S. C. 58. 

This Code does not apply to special statutory proceedings to enforce builder's lien. Tenny v. 
Power Co., 67 S. C. 11, 17, 45 S. E. 111. 



Title 


I. 


Title 


II. 


Title 


III. 


Title 


IV. 


Title 


V. 


Title 


VI. 


Title 


VII. 


Title 


VIII. 


Title 


IX. 


Title 


X. 


Title 


XI. 


Title 


XII. 


Title XIII. 


Title 


XIV. 


Title 


XV. 


Title 


XVI. 



TITLE I. 

FORM OF CIVIL ACTIONS. 



(308) § 1. One Form of Action Established. — There shall be in 
this State but one form of action for the enforcement or protection of pri- 
vate rights and the redress of private wrongs, which shall be denom- 
inated a civil action. 

Civ. Pro., '12, § 114; Civ. Pro., '02, § 89; 1870, XIV, § 92. 

No action lies unless a cause of action exists which would formerly maintain an action 
at law or a bill in equity. Southern Man. Co. v. Tew, 5 S. C. 5. 

Whether legal or equitable, such rights must alike be enforced or protected by the same 
form of action. Parker v. Jacobs, 14 S. C. 112; Chapman v. Lipscomb, 18 S. C. 222; Scaife v. 
Thompson, 15 S. C. 337. No change is made between legal and equitable causes of action. 
Chapman v. Lipscomb, 18 S. C. 222; Sullivan v. Sullivan, 20 S. C. 509. But while causes of 
action are distinct from remedies, they are enforcible bv the one form of remedy. Emory v. 
Hazard Powder Co., 22 S. C. 476. 

See note as to changes made by Code, §1. 

Depositions can be used in civil actions, including special proceedings. In re Percival's Estate, 
108 S. C. 45; 93 S. E. 243. 



106 CODE OF CIVIL PROCEDURE 

Where a plaintiff has already availed himself of two partitions, involving the issue of 
paramount title as between himself and the defendant, he has exhausted his remedies as are 
prescribed bv Section 317, providing that he may have two actions for the recovery of real 
property. Walsh v. Evans, 112 S. C. 131; 99 S. E. 546. 

Wife mav maintain action against her husband for wilfully beating her, particularly in 
view of Sections 846 and 850. Prosser v. Prosser, 114 S. C. 45; 102 S. E. 78. 

(309) § 2. Parties Now Designated. — In snch action the party com- 
plaining shall be known as the plaintiff, and the adverse party as the de- 
fendant. 

Civ. Pro., '12, § 115; Civ. Pro., '02, § 90; 1870, XIV, § 93. 

(310) § 3. Action on Judgment. — No action shall be brought upon a 
judgment rendered in any Court in this State, except a Court of Magis- 
trate, between the same parties, without leave of the Court, or a Judge 
thereof, at chambers, for good cause shown, or notice to the adverse party; 
and no action on a judgment rendered by a Magistrate shall be brought in 
the same county within five years after its rendition, except in case of his 
death, resignation, incapacity to act, or removal from the county, or 
that the process w^as not personally served on the defendant, or on all 
the defendants, or in case of the death of some of the parties, or where 
the docket or record of such judgment is or shall have been lost or de- 
stroyed. 

Civ. Pro., '12, § 116 ; Civ. Pro., '02, § 91 ; 1870, XIV, § 94 ; 1912, XXVII, 536. 

Does not apply to action by creditor of decedent to subject lands in posession of devisees to 
Judgment. Brock v. Kirkpatrick,' 60 S. O. 322, 38 S. E. 779. 

An action may be brought upon a judgment or decree in equity, whether it be by consent 
or not, even though no such action can under this section be l3rought without leave of Court. 
Green v. Rembert, 108 S. C. 203 ; 93 S. E. 769. 

(311) § 4. Feigned Issues Not Allowed. — Feigned issues shall not be 
allowed, and, instead thereof, or when a question of fact, not put in issue 
by the pleadings, is to be tried by a jury, an order for the trial may be 
made stating distinctly and plainly the question of fact to be tried; and 
such order shall be the only authority necessary for a trial. 

Civ. Pro., '12, § 117 ; Civ. Pro., '02, § 92 ; 1870, XIV, § 95. 



TITLE n. 

TIME OF COMMENCING CIVIL ACTIONS. 

Chapter I. Actions Generally, 107. 

Chapter II. For the Recovery of Real Property, 107. 

Chapter III. Time of Commencing Action Other than the Recovery of 

Real Property, 113. 
Chapter IV. General Provisions as to the Time of Commencing Actions, 

116. 



OF SOUTH CAROLINA 107 

CHAPTER I. 

Actions Generally. 

(312) § 1. Limitation Not to Apply When Action Commenced 
or Rig'ht of Action Accrued. — The provisions of this Title shall not extend 
to actions already commenced, or to cases where the right of action has 
already accrued; but the statutes then in force shall be applicable to such 
cases, according to the subject of the action and without regard to the 
form. 

Civ. Pro., '12, § 118 ; Civ. Pro., '02, § 93 ; 1870, XIV, § 96. 

Shand v. Gage, 9 S. C. 188; Haves v. Clinkscales, 9 S. C. 450; Bratton v. Guy, 12 S. C. 42; 
Bolt V. Dawkins, 16 S. 0. 210; Nichols v. 'Briggs, 18 S. C. 473; State v. Pinckney, 22 S. C. 
484- Colvin v. Phillips, 25 S. 0. 228; Rehkopf v. Kuhland, 30 S. C. 234, 9 S. E. 99; Lyles v. 
Roach, 30 S. C. 291, 9 S. E. 334; Heyward v. Farmers Mining Co., 42 S. C. 138, 19 S. E. 
963; Cheatham v. Evans, 160 Fed. 802; Young v. McNeill, 78 S. C. 143, 154, 59 S. E. 986. 

There are only three exceptions to the operation of the limitations in this Title: 1. 
Where the action was already commenced. 2. Where the right of action had already accrued. 
3. Where a different limitation is prescribed bv statute. Stoddard v. Owings, 42 S. C. 88, 20 
S. E. 25; Glover v. Floyd, 76 S. C. 292, 57 S. E. 25. Right of action defined. Ih. 

Applies to bond and mortgage executed prior to adoption of Code, but maturing afterwards. 

(313) § 2. Time for Commencing Actions, Etc. — Civil actions can only 
be commenced within the periods prescribed in this Title, after the cause 
of action shall have accrued, except where, in special cases, a different 
limitation is prescribed by Statute, and in the cases mentioned in Section 
312. But the objection that the action was not commenced within the 
time limited can only be taken by answer. 

Civ. Pro., '12, § 119 ; Civ. Pro., '02, § 94 ; 1870, XIY, § 97. 

The statute cannot avail unless so pleaded. Coney v. Timmons, 16 S. C. 378; Cureton v. 
Westfield, 22 S. C. 583; Moore v. Smith, 29 S. C. 254, 7 S. E. 485; Foggeth v. Gaffney, 33 
S. C. 303, 12 S. E. 260; Jones v. Boykin, 70 S. C. 309, 315, 49 S. E. 877; Guerard v. 
Jenkins, 80 S. C. 224, 61 S. E. 258. 

Defendant failing to so object bv answer is barred from making that defense on trial. .Jones 
V. Massey, 9 S. 0. 376. " 

But such defense does not preclude other defenses, even though inconsistent. Cohrs r. 
Eraser, 5 S. C. 355. 

statement of reasons which actuated defendant to plead such limitation properly stricken out 
of answer as irrelevant. Nichols v. Briggs. 18 S. C. 473. 

When it need not be formally pleaded by defendants. Jackson v. Plyler, 38 S. C. 496, 500, 
17 S. E. 257; Sutton v. Clark, 59 S. C. 440, 38 S. E. 154; Bank v. Gadsden, 56 S. C. 313, 
33 S. E. 575. 

Adverse possession may be shown under general denial. Llovd v Rawl, 63 S. C. 219, 41 
S. E. 312. 

Plea of statute of limitations must be set up by the answer ; it cannot be made effective by 
demurrer. Guerard v. Jenkins, 80 S. C. 224, 61 S. E. 258. 

Statute of limitations not applicable to action for specific performance. Poston v. Ingraham, 
76 S. C. 167, 170, 56 S. E. 780; Miller v. Saxton, 75 S. C. 237, 55 S. E. 810. 

Laches. Robertson v. Blair, 56 S. C. 96, 104, 34 S. E. 11; Brock v. Kirkpatrick, 72 S. C. 491, 
502, 52 S. E. 592; Miller v. Saxton, 75 S. C. 237, 55 S. E. 310; Jones v. Haile Gold Mining 
Co., 79 S. C. 50, 60 S. E. 35; Shute v. Shute, 82 S. C. 264, 64 S. E. 145. 

Presumption after lapse of twenty years. Young v. McNeil, 78 S. C. 143, 59 S. E. 986. 

CHAPTER II. 

For the Recovery of Real Property. 

(314) § 1. When State Will Not Sue.— The State will not sue 
any person for or in respect to any real property, or the issues or profits 
thereof, by reason of the right or title of the State to the same unless : 

1. Such right or title shall have accrued within twenty years before any 
action or other proceeding for the same shall be commenced; or unless 

2. The State, or those from whom it claims, shall have received the 
rents and profits of such real property, or of some part thereof, within 
the space of twenty years. 

Civ. Pro., '12, § 120 ; Civ. Pro., '02, § 95 ; 1870, XIY, § 98 ; 1873, XV, 496. 

Does not operate retrospectively. State v. Pinckney, 22 S. C. 484; Heyward v. Farmers 
Mining Co., 42 S. C. 138, 19 S. E. 963. Until this Section was passed, in 1870, the 



108 CODE OF CIVIL PROCEDURE 

doctrine of nullum tempus prevailed in this State. State v. P. G. Co., 22 S. C. 50. As to its 
effect it remains to be construed. State v. Pinckney, 22 S. C. 484; Glover v. Floyd, 76 
S. C. 296, 57 S. E. 25. ' 

There is no such thing as land apart from title, and. a remainder in fee is "land" within 
the Constitutional meaning exemption of homestead from sale. Gibbs v. Hunter, 99 S. C. 410 ; 
83 S. E. 606. 

(315) § 2. When Action Cannot Be Brought by Grantee from State. 

— No action sliall be brought for or in respect to real property by any 
person claiming by virtue of letters patent or grants from the State, unless 
the same might have been commenced by the State as herein specified, in 
case such patent or grant had not been issued or made. 
Civ. Pro., '12, § 121; Civ. Tro., '02, § 9G ; 1870, XIV, § 00. 

(316) § 3. When Action by State pr Their Grantees to Be Brought 
Within Ten Years. — When letters patent or grants of real property shall 
have been issued or made by the State, and the same shall be declared 
void by the determination of a competent Court, rendered upon an alle- 
gation of a fraudulent suggestion, or concealment, or forfeiture, or mis- 
take, or ignorance of a material fact, or wrongful detaining, or defective 
title, in such case an action for the recovery of the premises so con- 
veyed may be brought either by the State, or by any subsequent patentee 
or grantee of the premises, his heirs or assigns, within ten years after 
such determination was made, but not after that period. 

Civ. Pro., '12, § 122 ; Civ. Pro., '02, § 97 ; 1870, XIY, § 100 ; 1873, XV, 40G. 

(317) § 4. Seizin Within Ten Years— When Necessary— Plaintiff 
Limited to Two Actions. — 1. No action for the recovery of real property, 
or for the recovery of the possession thereof, shall be maintained, unless 
it appear that the plaintiff, his ancestor, predecessor, or grantor, was seized 
or possessed of the premises in question within ten years before the com- 
mencement of such action : Provided, No action to recover possession of 
real property shall be brought against a party in possession under claim 
of title through a deed or deeds in which a defective renunciation of 
inheritance occurred, or in which no renunciation of inheritance was made 
where one should have been executed, where said right of action would not 
exist, except by reason of an ancestor 's defective renunciation of inheritance 
or failure to execute a renunciation of inheritance, unless said action is 
commenced prior to January 1, 1914. 

1870, XIV, § 101 ; 1873, XV, 49G ; 1913, XXVII, 36. 

Two actions in partition are actions for recovery of real property under this section. Walsh 
V. Evans, 112 S. C. 131; 99 S. E. 546. 

Adverse possession for ten years confers good title which mav be asserted affirmatively. 
Duren v. Kee, 50 S. C. 44,4, 27 S. E. 875; Harrelson v. Sarvis, 39 S. C. 14, 17 S. E. 368; 
Busby V. Railroad Co., 45 S. C. 312, 23 S. E. 50; Cave v. Anderson, 50 S. C. 293, 27 S. E. 
693. Adverse possession. Kolb v. Jones, 62 S. C. 193, 40 S. E. 168; Epperson v. Stansill, 
64 S. C. 485, 42 S. E. 426; Williams v. Halford, 73 S. C. 119, 126, 53 S. B. 88; Harman v. 
Southern Rv., 72 S. C. 228, 234, 51 S. E. 689; Southern Railway v. Gossett, 79 S. 0. 372, 
382, 60 S. E. 956; Southern Railwav v. Howell, 79 S. C. 286, 60 S. E. 677; C. N. & L. Ry. v. 
Laurens Mills, 82 S. C. 24, 61 S. E. 1089, 62 S. W. 1119. 

In action for special relief under § (5435) Vol. Ill plea under this section inapplicable and 
can only be considered with plea of adverse possession. Williams v. Halford, 73 S. C. 119, 126. 

2. Plaintiff Limited to Two Actions for Recovery of Real Property. 
— The plaintiff in all actions for recovery of real property, or the recovery 
of the possession thereof, is hereby limited to two actions for the same, 
and no more : Provided, That the costs of the first action be first paid, and 
the second action be brought within two years from the rendition of 
the verdict or judgment in the first action, or from the granting of a non- 
suit or discontinuance therein. 



OF SOUTH CAROLINA 109 

Civ. Pro., '12, § 123; Civ. Pro., '02, § OS; 1870, XXII, 76. 

See Geiger r. Kaigler, 15 S. C. 271; Turnbull r. Ross, 141 Fed. 649. 

If action is not renewed or recommenced within two years after discontinuance or verdict 
in first action, the title is determined to be in the defendant. Dyson v. Leek, 5 Strob. 141; 
Binda v. Benbow, 11 Rich. 24. The two actions are allowed subsequent to Act. Duren v. 
Kee 41 S. C. 171, 19 S. E. 492. As to payment of costs of first action. Columbia W. P. Co. v. 
Columbia L. and I. Co., 42 S. C. 488, 20 S. E. 378. Dismissal of second action for failure to 
pay costs of first action, precludes plaintifE from bringing another. Ih., 47 S. C. 117, 25 S. 
E. 48. This subdivision does not apply to actions for partition. Elmore v. Davis, 49 S. C. 1, 
26 S. E. 898; Foster v. Foster, 81 S." C. 307, 62 S. E. 320. Nor to action for damages and 
injunction against trespasses. Tompkins r. R. R. Co., 30 S. C. 479, 9 S. E. 521. Paj'ment 
of witnesses' costs in first action. Mitchell r. Barrs, 64 S. C. 197, 41 S. E. 962. 

Time runs from date of nonsuit in first action and is not suspended by appeal. Richardson v. 
Riley, 67 S. C. 53, 45 S. E. 104. 

Payment of costs in first action a condition precedent and should be alleged. Peterman v. 
Pope," 74 S. C. 296. 54 S. E. 569. 

Statute applies where action is brought by a trustee for an infant cestui que trustent. Ben- 
bow V. Levi, 50 S. C. 120, 27 S. E. 655. 

Williams v. Halford, 73 S. C. 126, 53 S. E. 88a. 

Time at which two-year limitation begins to run is date of verdict and not filing of remittitur 
on adjudication of appeal in first action. Love v. Turner, 84 S. C. 178, 65 S» E. 1043. 

Plaintiff may maintain second cause of action for possession of real property against the 
same party upon the payment of costs of the first action, provided the second cause of action is 
brought within two vears after termination of first. Car. r. Mouzon, 93 S. C. 161; 76 S. E. 
201. Mitchum v. Shaw, 98 S. C. 175; 82 S. E. 401. 

(318) § 5. Seizin Within Ten Years — When Necessary in Action or 
Defense Founded on Title, Etc. — No cause of action, or defense to an 
action, founded upon a title to real property, or to rents or services out 
of the same, shall be effectual, unless it appear that the person prose- 
cuting the action or making the defense, or under whose title the action 
is prosecuted or the defense is made, or the ancestor, predecessor, or 
grantor of such person, was seized or possessed of the premises in ques- 
tion within ten years before the committing of the act in respect to which 
such action is prosecuted or defense made. 

Civ. Pro., '12. § 124; Civ. Pro., '02, § 90; 1870, XIY, § 102; 1873, XV. 496. 

Love V. Turner, 71 S. C. 330, 51 S. E. 101; Shute r. Shute, 79 S. C. 420, 60 S. E. 961. 

(319) § 6. Action After Entry, or Right of Entry. — No entry upon 
real estate shall be deemed sufficient or valid as a claim, unless an action 
be commenced thereupon within one year after the making of such entry, 
and within ten years from the time when the right to make such entry 
descended or accrued. 

Civ. Pro., '12, § 125 ; Civ. Pro., '02, § 100 ; 1870, XIY, § 103 ; 1873, XY, 496. 

(320) § 7. Possession — When Presumed — Occupation When Deemed 
Under Leg'al Title. — In every action for the recovery of real property, or 
the possession thereof, the person establishing a legal title to the premises 
shall be presumed to have been possessed thereof within the time re- 
quired by law; and the occupation of such premises by any other person 
shall be deemed to have been under and in subordination to the legal title, 
unless it appear that such premises have been held and possessed ad- 
versely to such legal title for ten years before the commencement of 
such action. 

Civ. Pro., '12, § 126 ; Civ. Pro., '02, § 101 ; 1870, XIY, § 104 ; 1873, XY, 496. 

Adverse posession cannot give title as against a town, Crocker v. Collins, 37 S. C. 328, 
15 S. E. 951. 

Such adverse possession gives no right until the expiration of the ten vears. Ellen v. 
Ellen, 16 S. C. 132. 

There can be no adverse possession by purchaser under contract to purchase the land 
against vendor until he has paid the purchase money. Blackwell v. Ryon, 21 S. C. 112. 
Nor by purchaser from mortgagor, with notice of the mortgage, against the mortgagee. Norton 
V. Lewis, 3 S. C. 25; Clark r. Smith, 13 S. C. 585; Lynch v. Hancock, 14 S. C. 66. But 
there can be by purchaser against a judgment. Goldsmith v. Jacobs, 14 S. C. 624. There can 
be no adverse possession against any of the cotenants, unless it is against all. Scaife v. 
Thompson, 15 S. C. 337. Before there can be adverse possession as to cotenants there must 



110 CODE OF CIVIL PROCEDURE 

be proof of ouster. Stone v. Fitts, 38 S. C. 394, 17 S. E. 136; Mole v. Folk, 45 S. C. 265, 
22 S. E. 882. All attempt by one cotenant to convey all the land amounts to ouster. Garrett 
V. Weinberg, 48 S. C. 29, 26 S. E. 3. 

But successive purchasers cannot tack possession so as to give such title. Pegues i'. 
Warlev, 14 S. C. 180; Ellen v. Ellen, 16 S. C. 132; Garrett v. Weinberg, 48 S. C. 29, 26 S. 
E. 3. 

There can be no adverse possession where no trespass is committed against owner. Massey 
V. Duren, 3 S. C. 34; Mosley v. Hankinson, 25 S. C. 519; Sutton v. Clark, 59 S. C. 440, 
38 S. E. 154. 

Hence, where a woman married before the Constitution of 1868 did not have the right to 
the ijossession of her land required before that time, until the death of her husband, the 
statute did not commence to run against her until her husband's death. Garrett v Wein- 
berg, 48 S. C. 29, 26 S. E. 3. See, also, Boykin v. Ancrum, 28 S. C. 486, 6 S. E. 305; 
Rawles v. Johns, 54 S. 0. 394, 32 S E. 451; Bell v. Talbird, Rich. Eq. 361; Joyce v. 
Gunnels, 2 Rich, Eq. 259; Banister v. Bull, 16 S. C. 220; Covar v. Cantelou, 25 S. C. 35; 
Moseley v. Hankinson, 25 S. C. 519. 

Adverse possession under Act 1871 to ripen into title must run twenty years, and is not 
limited to ten years' duration, as fixed in this Section by amendment of 1873. Rehkopf v. 
Kuhland, 30 S. C. 234, 9 S. E. 99; Lyles v. Roach, 30 S. C. 291, 9 S. E. 334. But adverse 
possession, begun in 1883, is controlled by this Section, then in force. Johnson v. Cobb, 29 
S. C. 372, 7»S. E. 601. Adverse possession. Loyd v. Rawl, 63 S. C. 219, 41 S. E. 312. 
Adverse possession — claiming title under common ancestor — disclaiming title. Langston v. 
Cothran, 78 S. C. 23, 58 S. E. 956. Occasional trespass by third party does not interrupt 
continuity of possession of one claiming under title. Love v. Turner, 78 S. C. 513, 59 S. 
E. 529. Ten years' adverse possession gives title except against the State. Kolb v. Jones, 
62 S. C. 195, 40 S. E. 168. Possession of ancestor and heir may be tacked. Epperson v. 
Stansill, 64 S. C. 485, 42 S. E. 426; Brucke v. Hubbard, 74 S. C. 144, 54 S. E. 249; Powers 
r. Smith, 80 S. C. 110, 61 S. E. 222; Bardin v. Commercial Ins. & Trust Co., 82 S. C. 
358, 64 S. E. 165. Statute does not run between tenants until actual ouster. Green v. 
Cannady, 71 S. C. 317, 51 S. E. 92. Nor against remainderman during continuance of 
prior estate. Mitchell v. Cleveland, 76 S. C. 432, 57 S. E. 33. Adverse possession against 
remaindermen. Young v. McNeill, 78 S. C. 143, 155, 59 S. E. 986. 

Adverse posession against trustees bind cestui que trustent. Trustee v. Jennings, 40 S. 
C. 168; Benbow ■!'. Levy, 50 S. C. 120; Few v. Killer, 63 S. C. 154, 41 S. E. 85; Young v. 
McNeill, 78 S. C. 155, 59 S. E. 986; Pope v. Patterson, 78 S. C. 334, 58 S. E. 945. 

Occupancy which is mere trespass without claim of title cannot ripen into good title. Carr 
V. Mouzon, 86 S. C. 461, 68 S. E. 661. 

Presumption of ouster from twentv years exclusive possession by cotenant. Powers r. 
Smith, 80 S. C. 110, 61 S. E. 222. 

Where step-father goes into possession of tract of land after bidding it off at partition sale, 
without doing anything more to perfect sale, his possession will not be presumed to be under 
partition sale, but under marital rights of wife and as tenant in common with his step- 
children. Sibley v. Sibley, 88 S. C. 184. 

In an action for possession of real property, possession is presumed to follow legal title. 
Stokes V. Murray, 102 S. C. 395 ; 87 S. E. 71. 

When the plaintiff establishes title to the premises, the presumption follows that they are 
possessed of the same within the time required by law. Dickerson v. Epps, 104 S. C. 381; 89 
S. E. 354. 

(321) § 8. Occupation Under Written Instrument, Etc. — Whenever it 
shall appear that the occupant, or those under whom he claims, entered 
into the possession of premises under claim of title, exclusive of any other 
right, founding such claim upon a written instrument, as being a convey- 
ance of the premises in question, or upon the decree or judgment of a 
competent Court, and that there has been a continued occupation and 
possession of the premises included in such instrument, decree, or judg- 
ment, or of some part of such premises under such claim for ten years, the 
premises so included shall be deemed to have been held adversely; except 
that where the premises so included consist of a tract divided into lots, the 
possession of one lot shall not be deemed a possession of any other lot 
of the same tract. 

Civ. Pro., '12, § 127; Civ. Pro., '02, § 102; 1870, XIV, § 105; 1873, XV, 496. 

Godfrey v. Burton Lumber Co., 88 S. C. 132, 138. 

Occupancy of one of two adjoining parcels of land included within lines of plat held as 
color of title does not confer title by adverse possession of the other parcel. Massey v. 
Duren, 3 S. C. 34. 

Sufficiency of written in.strument. Garrett v. Weinberg, 48 S. C. 29, 26 S. E. 3. 

Devisee's possession of devised lands under will in order to be adverse can only have 
starting point where right of action accrues in favor of creditor. Brock v. Kirkpatrick, 69 
S. C. 231, 48 S. E. 72. Adverse possession by son entering under permission of father. 
pyicCutchen v. McCutchen, 77 S. C. 138, 57 S. E. 678, 12 L. R. A., "N. S., 1140n. By 
agent against principal. Crawford v. Crawford, 77 S. C. 205, 57 S. E. 837. Presumption of 
ouster from twenty years' exclusive possession by cotenant. Powers v. Smith, 80 S. C. Ill, 

61 S. E. 222. 

Adverse possession cannot ordinarily be claimed against one under whom defendant entered 
into possession, but this does not apply where there has been an adverse holding for a 
sufficient length of time to presume a grant. Mitchell v. Allen, 81 S. C. 341, 61 S. E. 1087, 

62 S. E. 399; McCutchen v. McCutchen, 77 S. C. 129, 57 S. E. 678, 12 L. R. A., N. S., 1140n. 
Possession of landlord through successive tenants deemed continuous: Mahonev v. Southern 
Railway, 82 S. C. 215, 64 S. E. 228. 



OF SOUTH CAROLINA 111 

In perfecting title by adverse possession under color of title it is not necessary that posses- 
sion of portions of tract or lot be continuous in one particular place for statutory period. 
Mahoney r. Southern Railway, 82 S. C. 215, 64 S. E. 228. 

Claim of title may be inferred from particular actions, or general course of occupant in 
dealing with land. "Carr v. Mouzon, 86 S. C. 461, 468, 68 S. E. 661. Not necessary to 
prove express notice to owner of claim of title. 7b. 

If one enters into possession of a single tract of land, under a claim of title, founded upon 
a written instrument as being a conveyance or upon a decree or judgment, actual possession 
of a part thereof is sufficient to acquire title to the whole by adverse possession. Witcover v. 
Grant, 92 S. C. 19; 76 S. E. 274. 

Where plaintiff enters upon a parcel of land under a written instrument and there has 
been a continued occupation of the premises, including the instrument or some part thereof, for 
ten years, the holding is deemed adverse. Dickerson v. Epps, 104 S. C. 381; 89 S. E. 354. 

While an arbitration award may not be sufficient to pass title to land, it is competent 
evidence of color of title. Pore v. Berry, 94 S. C. 71; 78 S. E. 706. 

(322) § 9. Adverse Possession Under Written Instrument, Etc. — For 

the purpose of constituting an adverse possession, by any person claim- 
ing a title founded upon a written instrument or a judgment or decree, 
land shall be deemed to have been possessed and occupied in the follow- 
ing cases : 

1. Where it has been usually cultivated or improved. 

2. Where it has been protected by a substantial enclosure. . 

3. Where, although not enclosed, it has been used for the supply of 
fuel or of fencing timber, for the purposes of husbandry, or the ordinary 
use of the occupant. 

4. Where a known farm or a single lot has been partly improved, the 
portion of such farm or lot that may have been left not cleared or not 
enclosed, according to the usual course and custom of the adjoining coun- 
try, shall be deemed to have been occupied for the same length of time as 
the part improved and cultivated. 

Civ. Pro., '12, § 128 ; Civ. Pro., '02, § 103 ; 1870, XIV, § 106. 

Carr v. Mouzon, 86 S. C. 461, 468, 68 S. E. 661. 

Possession of landlord not broken iiy interval of time elapsing between departure and entry 
of successive tenants, cultivating parts of land. Mahoney v. Southern Railway, 82 S. C. 215, 
64 S. E. 228. Use of woodlands. Bardin v. Commercial Ins. & Trust Co., 82 S. C. 358, 
64 S. E. 165. 

One going into possession of land under a deed and plat is in under color of title and 
where he uses it for the purposes of husbandry and the ordinary uses of an occupant his 
possession for the statutory period will ripen into title to the land included within the lines 
marked on the ground by the surveyor. Witcover v. Grant, 93 S. C. 190; 76 S. E. 274. 

(323) § 10. Premises Actually Occupied Held Adversely. — Where it 
shall appear that there has been an actual continued occupation of prem- 
ises, under a claim of title, exclusive of any other right, but not founded 
upon a written instrument or a judgment or decree, the premises so ac- 
tually occupied, and no other, shall be deemed to have been held adversely. 

Civ. Pro., '12, § 129; Civ. Pro., '02, § 104; 1870, XIV, § 107. 

Carr v. Mouzon, 86 S. C. 461, 468, 68 S. E. 661. 

That the lines marked on the ground by a surveyor vary from those on the plat, to the 
amount of thirteen acres, in a tract sold for 25 acres, does not effect the title bv possession. 
Witcover v. Grant, 93 S. C. 190; 76 S. E. 274. 

(324) § 11. Adverse Possession Under Claim of Title Not Written. — 

For the purpose of constituting an adverse possession by a person claim- 
ing title not founded upon a written instrument or a judgment or decree, 
land shall be deemed to have been possessed in the following cases only: 

1. Where it has been protected by a substantial enclosure. 

2. Where it has been usually cultivated or improved. 
Civ. Pro., '12, § 130; Civ. Pro., '02, § 105; 1870, XIV, § lOS. 

Carr v. Mouzon, 86 S. C. 461, 468, 68 S. E. 661. 

Actual occupancy of line marked off on the ground by surveyor and occupied by the person 
for the statutory period is adverse possession. Witcover v. Grant; 93 S. C. 190; 76 S. E. 274. 

Where defendant's title is founded on a written instrument, it does not havfc to sliow enclosure 
under cultivation. P. & M. Bank v. Rivers, 107 S. 0, 204. 92 fe. E. 753. 



112 CODE OF CIVIL PROCEDURE 

(325) § 12. Relation of Landlord and Tenant, as Affecting Adverse 
Possession. — Whenever the relation of landlord and tenant shall have 
existed between any persons, the possession of the tenant shall be deemed 
the possession of the landlord nntil the expiration of ten years from the 
termination of the tenancy ; or, where there has been no written lease, until 
the expiration of ten years from the time of refusal to pay rent, notwith- 
standing that such tenant may have acquired another title, or may have 
claimed to hold adversely to his landlord. But such presumptions shall 
not be made after the periods herein limited. 

Civ. Pro., '12, § 131; Civ. Pro., '02, § 106; 1870, XIV, § 109, 1873, XV, 496. 

(326) § 13. Descent Cast^ — Effect of. — The right of a person to the 
possession of any real property shall not be impaired or affected by a 
descent being cast in consequence of the death of a person in possession 
of such property. 

Civ. Pro., '12, § 132 ; Civ. Pro., '02, § 107, 1879, XIV, § 110. 

This changes common law doctrine as to transmission of possession from ancestor to heir, 
which presumed that the possession was rightful. Geiger v. Kaigler, 15 S. C. 262 ; Duren v. 
Kee, 26 S. 0. 219, 2 S. E. 4. When the heir is seized of his ancestor's possession and there 
is no new entry, the possession of the heir is that of the ancestor. Duren v. Kee, 26 S. C. 
219. And their possession may be tacked. Burnett v. Crawford, 50 S. C. 161, 27 S. E. 645; 
Turpin v. Sudduth, 53 S. C. 295, 31 S. E. 245; Kilgore v. Kirkland, 69 S. C. 78, 48 S. E. 
44. But where the possession of the ancestor has been interrupted or put an end to, the 
entry of the heir is a new trespass, and the posessions do not unite to make title in heir. 
Congdon v. Morgan, 14 S. C. 587; Johnson v. Cobb, 29 S. C. 372, 7 S. E. 601. 

(327) § 14, Persons Under Disability. — If a person entitled to com- 
mence any action for the recovery of real property, or make an entry or 
defense founded on the title to real property, or to rents or services oat 
of the same, be, at the time such title shall first descend or accrue, either : 

1. Within the age of twenty-one years ; or, 

2. Insane; or, 

3. Imprisoned on a criminal or civil charge, or in execution upon con- 
viction of a criminal offense for a term less than for life — 

The time during which such disability shall continue, shall not be 
deemed any portion of the time in this Chapter limited for the com- 
mencement of such action or the making of such entry or defense ; but such 
action may be commenced, or entry or defense made, after tne period of 
ten years, and within ten years after the disability shall cease, or after 
the death of the person entitled who shall die under such disability ; but 
such action shall not be commenced, or entry or defense made, after that 
period. 

Civ. Pro., '12, § 133 ; Civ. Pro., '02, § 108 ; 1870, XIV, § 111 ; 1873, XV, 496. 

The disability must exist when the cause of action first accrues. Satcher v. Grice, 53 S. 
C. 126, 31 S. E. 3; Maccaw v. Crawley, 59 S. C. 342, 37 S. E. 934. Effect of minority of one 
cotenant. Garrett v. Weinberg, 48 S. C. 28, 26 S. E. 13. 

The statute does not run during the continuance of the disability. Rice v. Bamberg, 59 
S. C. 498, 38 S. E. 209. 

Applies to limitation in case of tax sale. Jones v. Boykin, 70 S. 0. 310, 49 S. E. 877, 
See Glover v. Floyd, 76 S. C. 292, 57 S. E. 25; Cheatham v. Evans, 160 Fed. 802. 

Minority. Brucke v. Hubbard, 74 S. C. 144, 54 S. E. 249; Cheatham v. Edgefield Mfg. 
Co., 1 Fed. 118; Cheatham v. Evans, 160 Fed. 802. 

Where cause of action accrued before statute was amended but disability was not removed 
until after such time, the original statute controls. Cheatham v. Evans, 160 Fed. 802. 

(328) § 15. After Forty Years, No Action Whatever Allowed.— No 

action shall be commenced in any case for the recovery of real property, or 
for any interest therein, against a person in possession under claim of 



OF SOUTH CAROLINA 113 

title by virtue of a written instrument, unless the person claiming, his 
ancestor or grantor, was actually in the possession of the same or a part 
thereof, within forty years from the commencement of such action. And 
the possession of a defendant, sole or connected, pursuant to the provisions 
of this Section, shall be deemed valid against the world after the lapse 
of said period. 

Civ. Pro., '12, § 134; Civ. Pro., '02, § 109; 1873, XV, 496. 

Does this applv to cases of adverse possession begun before its adoption? Sutton v. 
Clark, 59 S. C. 440, 38 S. E. 154. 

Does not apply to cases in which the cause of action had accrued when it was enacted, or 
before it has been in force for forty years. Young v. McNeill, 78 S. C. 143, 59 S. E. 986. 

Mitchell V. Cleveland, 76 S. C. 432, 57 S. E. 33. 

This statute does not applv, unless the defendant has been in possession 40 years after the 
accrual of the cause of action! Rowell v. Hyatt, 108 S. C. 300; 94 S. E. 113. 



CHAPTER ni. 

Time of Commencing- Actions Other Than for the Recovery of Real 

Property. 

(329) § 1. Limitation Prescribed. — The periods prescribed in Section 
313 for the commencement of actions other than for the recovery of real 
proj)erty shall be as follows : 

Civ. Pro., '12, § 135; Civ. Pro., '02, § 110; 1870, XIV, § 112. 

Laches. Brock v. Kirkpatrick, 72 S. C. 502, 52 S. E. 592; Hellams v. Prior, 64 S. C. 
296, 42 S. E. 106; Miller v. Saxton, 75 S. C. 237, 55 S. E. 310; Person v. Fort, 64 S. C. 
502, 42 S. E. 594; Poston v. Ingraham, 76 S. C. 170, 56 S. E. 780. 

The lex fori governs as to limitation of actions for personal injuries. See Note, 48 L. R. A. 
638. 

Accounting between trustee and cestui que trustent. Hayes v. Walker, 70 S. C. 53, 48 S. 
E. 989. Committee and heirs of lunatics. Cauthen v. Cauthen, 70 S. C. 176, 49 S. E. 321. 
Executor and devisee. Carlisle ■;;. Farrow, 74 S. C. 527, 54 S. E. 766. Heir and creditor. 
Divine v. Miller. 70 S. C. 225, 49 S. E. 479, 106 Am. St. Rep. 743. 

(330) § 2. Twenty Years. — Within twenty years : 

1. An action upon a judgment or decree of any Court of the United 
States, or any State or Territory within the United States. 

1870, XIV, § 118. 

Action on judgment distinguished from proceedings under § (611). Lowland v. Shocklej', 43 
S. C. 246, 21 S. B. 21. Applies to action on decrees for quality of partition. McKibben v. 
Salinas, 41 S. C. 105, 19 S. E. 302; Simms v. Kearse, 42 S. C. 43, 20 S. E. 19. 

Lien on land after termination of homestead exemption. Anderson v. Baughman, 69 S. C. 
42, 48 S. E. 38. 

Ten years' adverse posession is good against judgment. Dupont- r. Bridge Co., 65 S. C. 
534, 44 S. E. 86. 

Waiver of statutory bar by administrator. Brantley v. Bittle, 72 S. C. 179, 51 S. E. 561. 

See Glover v. Floyd, 76 S. C. 296, 57 S. E. 25. 

2. An action upon a bond, or other contract in writing, secured by a 
mortgage of real property; an action upon a sealed instrument other than 
a sealed note and personal bond for the payment of money only, whereof 
the period of limitation shall be the same as prescribed in the following 
Section. 

Civ. Pro., '12, § 136; Civ. '02, § 111; 1880, XVII, 415. 

Subdivision 2 does not apply to action for breach of warranty in deeds made before 1870. 
Bratton v. Guy, 12 S. C. 42. Nor to seal note which matured before that time. Nichols i'. 
Briggs, 18 S. C. 473. But mortgage given to secure it might be foreclosed at any time within 
twenty years. 7b. Nor to bond executed before that time. Neely v. Yorkville, 10 S. C. 141; 
State V. Lake, 30 S. C. 43, 8 S. E. 322. But it does apply to official bond executed since that 
time. Strain v. Babb, 30 S. C. 342, 9 S. E. 271. 

Applies to actions to foreclose mortgages maturing after enactment of statute. Jennings v. 
Peay, 51 S. C. 327, 28 S. E. 949. Execution purchaser of mortgagor may plead the 
statute, although the mortgagor is out of the State. Arthur v. Screven, 39 S. C. 77, 17 S. E. 
641. 

See Lyles v. Lyles, 71 S. C. 391, 51 S. E. 113; Montague v. Priester, 82 S. C. 492, 64 S. 
E. 393; Coleman v. Coleman, 74 S. C. 567, 54 S. E. 758. 

9 C C P 



114 CODE OF CIVIL PROCEDURE 

(331) § 3. Six Years. — Within six years: 
1870, XIV, § 114. 

1. An action upon a contract, obligation, or liability, express or implied, 
excepting those provided for in Section 2 of this Chapter. 

Suit may be brought against a surety after the expiration of the six months within which 
the bond required it should be brought ; the action falling within this statute ; State A. & M. 
Co. of S. C. V. Taylor., 104 S. C. 167; 88 S. E. 372. 

Applies to actions on warranty in deed. Bratton v. Guy, 12 S. C. 42. 

In actions against heirs or devisees to subject real estate in their possession to payment of 
debts of ancestor or devisor, nine months must be added to the six years. Cleveland v. 
Mills, 9 S. C. 430. 

Applies to note executed prior to but maturing after the enactment of the statute. Stoddard v. 
Owings, 42 S. C. 88, 20 S. E. 25: Jennings v. Peay, 51 S. C. 327, 28 S. E. 949. When 
cause of action accrues to endorser on note. McCrady v. Jones, 44 S. C. 406, 22 S. E. 414. 

2. An action upon a liability created by Statute, other than a penalty 
or forfeiture. 

Action on decree for equality of partition is not. Arthur v. Screven, 39 S. C. 77, 17 S. E. 
641. 

Action for recovery of taxes due six years before action barred. Milster v. Spartanburg, 68 
S. C. 36, 46 S. "E. 539. 

See William v. Halford, 73 S. C. 125, 53 S. E. 88; Randolph v. Walker, 78 S. C. 157, 

59 S. E. 856. 

3. An action for trespass upon or damage to real property. 

Charleston, etc., R. Co. v. Reynolds, 69 S. C. 481, 517, 48 S. E. 476. 

Injury to property from obstructing stream. Lawton v. S. A. L. Ry., 75 S. C. 82, 55 S. E. 
128. Injury to property by change of grade in streets. Greenville v. Earle, 80 S. C. 321, 

60 S. E. 1117. 

4. An action for taking, detaining, or injuring any goods or chattels, 
including action for the specific recovery of personal property. 

Applies to action to recover houses on land sold to plaintiff by party in possession. Dominick 
V. Parr, 22 S. C. 585. To action to recover amount of mistake in compromise settlement of 
note. McMakin v. Gowan,^ 18 S. C. 502. 

5. An action for criminal conversation, or for any other injury to the 
person or rights of another, not arising on contract, and not hereinafter 
enumerated. 

Where goods held for safekeeping are destroyed, this limitation begins to run from date of 
loss or of owner's notice thereof, and not from time of demand. Cohrs v. Fraizier, 5 S. C. 356. 

A suit in equity to set aside fraudulent conveyance is within the six year statute of limitations, 
and is barred within six years after creditors had knowledge of facts sufficient to put them 
on inquiry which, if developed would have disclosed the alleged fraud. Tucker v. Weathersbee, 
98 S. C. 402; 82 S. E. 538. 

In an action for equitable relief on the ground of fraud, it is necessary to allege the fraud 
was not discovered within the six year period in order to prevent the case from being heard 
under this section, and the burden is on the defendant to show that the plaintiff had knowledge 
of the fraud. Grayson v. Fidelity Life Ins. Co., 114 S. C. 130; 103 S. E. 477. 

6. Any action for relief on the ground of fraud, in cases which, hereto- 
fore, were solely cognizable by the Court of Chancery, the cause of action 
in such case not to be deemed to have accrued until the discovery by the 
aggrieved party of the facts constituting the fraud. 

Subdivision 6 applied. Means v. Feaster, 4 S. C. 257; Beattie v. Poole, 13 S. C. 379; Kibler v. 
Mcllwain, 16 S. C. 550; Suber v. Chandler, 18 S. C. 526; Richardson v. Mounce, 19 S. C. 477; 
McSween v. McCown, 23 S. C. 342; City Council v. Bank, 22 S. C. 410; Amaker v. New, 33 S. C. 
28, 11 S. E. 386; Harrell v. Kea, 37 S. C. 369, 16 S. E. 42; Jackson v. Plyler, 38 S. C. 496, 17 S. 
E. 257; Brown v. Brown, 44 S. C. 378, 22 S. E. 412; Lenhardt v. French, 57 S. C. 493, 35 S. 
E. 761; Toole v. Johnson, 61 S. C. 34, 39 S. E. 254. 

Complaint must allege that fraud was not discovered until a period within which the action 
may be brought. Smith v. Linder, 77 S. C. 541, 58 S. E. 610; Williams v. Halford, 73 S. 
C. 125, 53 S. E. 88. 

7. Actions may be brought in any of the Courts of this State properly 
having jurisdiction thereof on any policies of insurance, either fire or life, 
whereby any person or property, resident or situate in this State, may 
be or may have been insured, or for or on account of any loss arising 
thereunder, within six years from the date of such loss, or from the ac- 
crual of the cause of action under said policy, any clause or condition in 



OF SOUTH CAROLINA 115 

the said policies or limitations therein contained to the contrary notwith- 
standing. 

Civ. Pro., '12, § 137; Civ. Pro., '02, § 112; 1S91, XX, 1042. 

Does not apply to contracts entered into prior to its enactment. Sample v. Ins. Co., 46 S. 
C. 491, 24 S. E. 334. 

Claimant has six years, under this section, to bring an action, although a constitutional 
provision of a Mutual Benefit order provides that no action be brought after six months after 
disallowance of claim. Sternheimar v. O. U. C. T. A., 107 S. C. 291; 93 S. E. 8. 

(332) § 4. Three Years. — Within three years: 

1870, XIV, § 115. 

1. An action against a Sheriff, Coroner or Constable, upon a liability 
incurred by the doing of an act in his official capacity, and in virtue of 
his office, or by the omission of an official duty, including the non-payment 
of money collected upon an execution. But this Section shall not apply 
to an action for an escape. 

See State v. Cornell, 70 S. C. 413, 50 S. E. 22. 

2. An action upon a Statute, for a penalty or forfeiture, where the action 
is given to the party aggrieved, or to such party and the State, except 
where the Statute imposing it prescribes a different limitation.* 

Civ. Pro., '12, § 13S; Civ. Pro., '02, § 113. 

Earle v. Owings, 72 S. C. 365, 51 S. E. 980; State v. Cornell, 70 S. C. 413, 50 S. E. 22. 

* A shipper's action to recover penalty under the constitution is "An action upon a statute," 
within the purview of this section. Sauls-Baker Co. v. A. C. L. RR. C, 109 S. C. 285; 96 
S. E. 118. 

(333) § 5. Two Years.— Within two years: 

1870, XIV, § 116. 

1. An action for libel, slander, assault, battery, or false imprisonment. 

2. An action upon a Statute, for a forfeiture or penalty to the State. 
Civ. Pro., 12, § 139 ; Civ. Pro., '02, § 114. 

state V. Cornell, 70 S. C. 409, 412, 50 S. E. 22. 

An agreed forfeit of a certain amount to State for breach of contract is stipulated damages 
and not a technical penalty, and action therefor is not hereby barred in two years. Lipscomb 
V. Seegers, 19 S. C. 425. 

(334) § 6. One Year. — Within one year: 

1870, XIV, § 117. 

An action against a Sheriff or other officer for the escape of a prisoner 
arrested or imprisoned on civil process. 
Civ. Pro., '12, § 140 ; Civ. Pro., '02, § 115. 

(335) § 7. Actions Upon Current Account. — ^In an action brought 
to recover a balance due upon a mutual, open, and current account, where 
there have been reciprocal demands between the parties, the cause of action 
shall be deemed to have accrued from the time of the last item proved in 
the account on either side. 

Civ. Pro., '12, § 141 ; Civ. Pro., '02, § 116 ; 1870, XIV, § 118. 

A sealed note on one side and open account on the other do not constitute such open 
mutual account. Chapman v. Chapman, 31 S. C. 405, 10 S. E. 106. 

(336) § 8. Action for Penalties. — An action upon a Statute, for a 
penalty or forfeiture given, in whole or in part, to any person who will 
prosecute for the same, must be commenced within one year after the 
commission of the offense; and, if the action be not commenced within 
the year by a private party, it may be commenced within two years there- 



116 CODE OF CIVIL PROCEDURE 

after, in behalf of the State, by the Attorney General, or the Solicitor of 
the Circuit where the offense was committed, unless a different limitation 
be prescribed in the Statute under which the action is brought. 
Civ. Pro., '12, § 142 ; Civ. Pro., '02, § 117 ; 1870, XIV, § 119. 

Applicable to actions for violation of separate coach law. . Sturkie v. Southern Ry., 71 
S. C. 208, 211, 50 S. E. 782. 

(337) § 9. Actions for Other Relief. — An action for relief not herein- 
before provided for, must be commenced within ten years after the cause 
of action shall have accrued. 

Civ. Pro., '12, § 143; Civ. Pro.. '02. § 118; 1870, XIV, § 120. 

McMakin r. Gowan. 18 S. C. 502: Bank v. Gadsden, 56 S. C. 313, 33 S. E. 575. 

statute does not run in favor of devisee until remedy against executor is exhausted. Brock v. 
Kirkpatrick, 69 S. C. 231, 48 S. E. 72. 

Williams v. Halford, 73 S. C. 125, 53 S. E. 88; Smith v. Lindler, 77 S. C. 535, 541, 58 S. 
E. 610. 

(338) § 10. Clause in Contract Not in Conformity to Statute of Lim- 
itations Declared Void. — No clause, provision or agreement in any con- 
tract of whatsoever nature, verbal or written, whereby it is agreed that 
either party shall be barred from bringing suit upon any cause of action 
arising out of said contract if not brought within a period less than the 
time prescribed by the Statute of Limitations, for similar causes of action, 
shall bar such action, but the same may be brought notwithstanding such 
clause, provision or agreement if brought within the time prescribed by 
the Statute of Limitations in reference to like causes of action. 

Civ. Pro., '12, § 144 ; 1911, XXVII, 130. 

Provision in contract, agreeing that either party should be barred within less time than the 
statutory period, is void. State A. & M. S. of S. C. v. Taylor, 104 S. C. 167; 88 S. E. 372. 

(339) § 11. Actions by State. — The limitations prescribed by this 
Chapter shall apply to actions brought in the name of the State, or for 
its benefit, in the same manner as to actions by private parties. 

Civ. Pro., '12, § 145; Civ. Pro., '02, § 119; 1870, XIV, § 121. 



CHAPTER IV. 

General Provisions as to the Time of Commencing Actions. 

(340) § 1. When Action Deemed Commenced. — An action is com- 
menced as to each defendant when the summons is served on him, or on 
a codefendant, who is a joint contractor, or otherwise united in interest 
with him. An attempt to commence an action is deemed equivalent to the 
commencement thereof, within the meaning of this Title, when the sum- 
mons is delivered with the intent that it shall be actually served, to the 
Sheriff or other officer of the county in which the defendant or one of 
them usually or last resided; or, if a corporation be defendant, to the 
Sheriff or other officer of the county in which such corporation was 
established by law, or where its general business was transacted, or where 
it kept an office for the transaction of business. 

Civ. Pro., '12, § 146; Civ. Pro., '02, § 120; 1870, XIV, § 122. 

Cureton v. Dargan, 12 S. C. 122; State v. Cohen, 13 S. C. 198; Montague v. Stelts, 37 S. 
C. 200, 15 S. E. 968; Morgan v. Morgan, 45 S. 0. 323, 23 S. E. 64; Norris v. Insurance Co., 
55 S. C. 450, 33 S. E. 566. 

Provision as to when action is commenced refers only to statute of limitations. Jordan v. 
Wilson, 69 S. C. 260, 48 S. E. 224. 

Court may acquire jurisdiction of defendant's person by summons or by his voluntary appear- 
ance. Stevens v. Ringling, 102 S. C. 333; 86 S. E. 683. 



OF SOUTH CAROLINA 117 

(341) § 2. Exemption — Defendant Out of State. — If, when the cause 
of action shall accrue against any person, he shall be out of the State, such 
action may be commenced within the terms herein respectively limited after 
the return of such person into this State ; and, if, after such cause of 
action shall have accrued, such person shall depart from and reside out of 
this State, or remain continuously absent therefrom for the space of one 
year or more, the time of his absence shall not be deemed or taken as any 
part of the time limited for the commencement of such action. 

Civ. Pro., '12, § 147 ; Civ. Pro., 02, § 121 ; 1870, XIV, § 123. 

Ewbank v. Ewbank, 64 S. C. 434, 435, 42 S. E. 194. 

Subsequent purchaser of mortgaged premises may plead statute. Where the mortgagor is 
out of the State. Arthur v. Screven, 39 S. C. 77., 17 S. E. 640. Applies to one who was a 
party to a suit, and absent from the State over one year prior to a proceeding to revive the 
decree therein. Morgan v. Morgan, 45 S. C. 323, 23 S. E. 64. It embraces persons who come 
into the State without a previous residence here. Burrows v. French, 14 S. C. 165. Where 
the statute has once commenced to run against a resident of this State his voluntary removal 
therefrom will not arrest its currency. Maccaw v. Crawlev, 59 S. C. 342, 37 S. E. 934. 

Applied. Cauthen v. Cauthen, 70 S. C. 177, 49 S. E. 321. 

Statute runs against a foreign corporation. Cook v. Carpenter, 212 Pa. 165, 1 L. R. A., 
N. S., 901. 

(342) § 3. Exemption as to Persons Under Disability. — If a person 
entitled to bring an action mentioned in the last chapter except for a pen- 
alty or forfeiture, or against a Sheriff or other officer for an escape, be, 
at the time the cause of action accrued, either : ( 1 ) Within the age of 
twenty-one years; or (2) insane; or (3) imprisoned on a criminal or 
civil charge, or in execution under the sentence of a Criminal Court for a 
less term than his natural life — the time of such disability is not a part 
of the time limited for the commencement of the action; except that the 
period within which the action must be brought cannot be extended more 
than five years by any such disability, except infancy; nor can it be so 
extended, in any case, longer than one year after the disability ceases : 
Provided, That the omission of the words, "or insane," herein since the 
adoption of the Code of Laws of South Carolina, 1912, shall not prejudice 
the interest of any insane person. 

Oiv. Pro., '12, § 148 ; Civ. Pro., '02, § 122 ; 1S70, XIV, § 124 ; 1918, XXX, 71.5. 

An infant has as much time within which to bring his action as persons not under 
disability, and under this Section he has one additional year after his majority, but no longer, 
to do so, if the time limited expire before or within that additional rear. Fricks v. Lewis, 26 S. C. 
237, 1 S. E. 884; Anderson v. Simms, 29 S. C. 247, 7 S. E. 289. 

(343) § 4. Death of Person Entitled Before Limitation Expires. — If a 

person entitled to bring an action die before the expiration of the time 
limited for the commencement thereof, and the cause of action survive, an 
action may be commenced by his representatives, after the expiration of 
that time and within one year from his death. If a person against whom 
an action may be brought die before the expiration of the time limited 
for the commencement thereof, and the cause of action survive, an action 
may be commenced against his executors or administrators after the ex- 
piration of that time, and within one year after the issuing of letters 
testamentary or of administration. 

Civ. Pro., '12, § 149 ; Civ. Pro., '02, § 123 ; 1870, XIV, § 125. 

Only applies to cases where the statute commenced to run in lifetime of decedent, and 
statutory period expired before administration. Strain v. Babb. 30 S. C. 342, 9 S. E. 271. 
It must be shown that the action was commenced within one year after letters testamentary or 
of administration were granted, or the plea of statute of limitations will not avail. Foggeth v. 
Gaffney, 33 S. C. 303, 12 S. E. 260. Where statutory period has not expired before administra- 
tion, the executor or administrator, under the law protecting adimistrator or executor from 
suit for nine months, that time must be added to the statutory period. Cleveland v. Mills, 9 
S. C. 435; Hayes v. Clinkseales, 9 S. C. 450; Moore v. Smith, 29 S. C. 254, 7 S. E. 485. 



118 CODE OF CIVIL PROCEDURE 

Where action is in form ex delicto, and defendant die, it cannot be revived against his 
personal representatives. Huff v. Watkins, 20 S. C. 477; except as to actions for injury to 
real property under § 375 of Procedure Code. Allen v. Union Oil Co., 59 S. C. 571, 38 S. E. 274. 

Applies onl}' to those cases where no administration is taken out until after the' expiration of 
the statutory period. Gaston v. Gaston, 80 S. C. 164, 61 S. E. 393. 

(344) § 5. Suits by Aliens. — AVlien a person shall be an alien subject, 
or citizen of a country at war with the United States, the time of the con- 
tinuance of the war shall not be a part of the period limited for the com- 
mencement of the action. 

Civ. Pro., '12, § 150; Civ. Pro., '02, § 124; 1870, XIV, § 126. 

(345) § 6. Where Judgment Eeversed. — If an action shall be com- 
menced within the time prescribed therefor, and a judgment therein be 
reversed on appeal, the plaintiff, or, if he die and the cause of action sur- 
vive, his heirs or representatives may commence a new action within one 
year after the reversal. 

Civ. Pro., '12, § 151 ; Civ. Pro., '02, § 125 ; 1870, XIV, § 127. 

(346) § 7. Stay of Action by Injunction, Etc. — When the commence- 
ment of an action shall be stayed by injunction or statutory prohibition, the 
time of the continuance of the injunction or prohibition shall not be part 
of the time limited for the commencement of the action. 

Civ. Pro., '12, § 152; Civ. Pro., '02, § 126; 1870, XIV, § 128. 

(347) § 8. Disability Must Exist When Right Accrued. — No person 
shall avail himself of a disability, unless it existed when his right of action 
accrued. 

Civ. Pro., '12, § 153 ; Civ. Pro., '02, § 127 ; 1870, XIV, § 129. 

Maccaw v. Crawley, 59 S. C. 342, 37 S. E. 934; Shubrick v. Adams, 20 S. C. 52; Fewell v. 
Collins, 3 Brev. 286; Adamson v. Smith, 2 Mills Const. Reports 269; Faysoux v. Prather, 
1 N. & MeC. 296. 

(348) § 9. Two or More Disabilities. — Where two or more disabilities 
shall coexist at the time the right of action accrues, the limitation shall not 
attach until they all be removed. 

Civ. Pro., '12, § 1.54; Civ. Pro., '02, § 128; 1870, XIV, § 130. 

(349) § 10. This Title— When Not to Apply.— This Title shall not 
affect actions to enforce the payment of bills, notes, or other evidences, of 
debt, issued by moneyed corporations, or issued or put in circulation 
as money. 

Civ. Pro., '12, § 155 ; Civ. Pro., '02, § 129 ; 1870, XIV, § 131. 

(350) § 11. Same. — This Title shall not affect action against directors 
or stockholders of a moneyed corporation, or banking associations, to re- 
cover a penalty or forfeiture imposed, or to enforce a liability created by 
law ; but such actions must be brought within six years after the discovery 
by the aggrieved party of the facts upon which the penalty or forfeiture 
attached, or the liability was created, unless otherwise provided in the law 
under which such corporation is organized. 

Civ. Pro., '12, § 156; Civ. Pro., '02, § 130; 1870, XIV, § 1.32. 

Applied in Parker v. Savings Bank, 53 S. C. 583, 31 S. E. 673. 

Within the provisions of this statute, a "moneyed" corporation is any corporation organized 
with the intention of accumulating wealth. Grice v. Anderson, 109 S. C. 388; 96 S. E. 22. 

(351) § 12. New Promises Must Be in Writing. — No acknowledgment 
or promise shall be sufficient evidence of a new or continuing contract, 



OF SOUTH CAROLINA 119 

whereby to take the case out of the operation of this Title, unless the same 
De contained in some writing signed by the party to be charged thereby; 
bui payment of any part of principal or interest is equivalent to a prom- 
ise in writing. 

Civ. Pro., '12, § 157; Civ. Pro., '02, § 131; 1870, XIV, § 13.3. 

Gregory v. Perry, 71 S. C. 246, 248, 50 S. E. 787. 

Tnis Section has reference only to the evidence necessary to establish an acknowledgment 
or new promise, but does not change the pre-existing law as to what acknowledgments will 
continue a debt not barred or what new promises will create a new contract. Ester v. Wood, 
21 S. C. 600; Hill v. Hill, 51 S. C. 134, 28 S. E. 309; Park v. Brooks, 38 S. C. 300, 17 S. 
E. 24. 

Parole promise not to plead the statute cannot operate as a waiver or as an agreement, or 
by way of estoppel to subvert this Section. Hill v. Perrin, 21 S. C. 356. 

A verbal promise to pay a debt after discharge in bankruptcy is not affected by this Section, 
but is valid. Lanier v. Tolleson, 20 S. C. 57. 

Administrator putting due bill made by him upon his inventory is not such new promise. 
Black V. White, 13 S. C. 37. 

Endorsement of payment by payor on sealed note sufficient to toll statute. Cook v. Jennings, 
40 S. C. 204, 18 S. E. 640. A partial payment sufficient to toll statute. Park v. Brooks, 
38 S. C. 300, 17 S. E. 24. But is not equivalent to a promise under the Statute of Frauds. 
Millwee v. Jay, 47 S. C. 430, 25 S. E. 299. 

An equitable mortgage and note barred by the statute are renewed by part payment on 
the note. Ewbank v. Ewbank, 64 S. C. 434, 42 S. E. 194. Entries of interest by bookkeeper 
of ci-edjitor, and endorsements on the back of note by creditor, do not operate to toll the 
statute. Bulcken v. Rhode, 81 S. C. 503, 62 S. E. 786. Payment on note by direction of 
payer arrests statute. Walker v. Cassels, 70 S. C. 271, 49 S. 'E. 862. Payment after death 
of debtor does not arrest statute. Divine v. Miller, 70 S. C. 225, 49 S. E. 479. Promise by 
iidniinistriitor only binds personal estate. Ih. 

(352) § 13. Partners Only Liable for Their Own Acts After Dissolu- 
tion of Partnership. — No acknowledgment, payment or part payment or 
renewal of any debt or obligation of a firm, made after notice of the dis- 
solution of the copartnership, shall have any force or effect to bind any 
member of the firm or continue his liability to pay said copartnership debt, 
other than the person by whom such acknowledgment, payment or part pay- 
ment or renewal shall be made, or in any wise aft'ect their right to plead 
the Statute of Limitations or the presumption of payment from lapse of 
time. 

Civ. Pro., '12, § 158; Civ. Pro., '02, § 131a; 1900, XXIII, 349. 

Payments by one of the joint contractors do not bind the others and deprive them of the pro- 
tection herein provided. Smith v. Townsend, 9 Rich. 44; Smith v. Caldwell, 15 Rich. 374; 
Shubrick v. Adams, 20 S. C. 49; Walter v. Kraft, 23 S. C. 578. 

(353) § 14. Suits on Causes Saved from Bar of Statute by Part Pay- 
.ment, etc. — All actions upon causes of action which would be barred by 
the Statute of Limitations but for part payment or a written acknowledg- 
ment, shall be Drought on the original cause of action, and the part pay- 
ment or written acknowledgment shall be evidence, to prevent the bar 
of the Statute of Limitations. 

€iv. Pro., '12, § 159; Civ. Pro., '02, § 131b; 1900, XXIII, 345. 

Prior to this Act, if payments had been made by debtor, the action, after expiration of six 
years, must have been on new promise implied from payment, and not on note. Fleming v. 
Fleming, 33 S. C. 505, 12 S. E. 257. 

Does not apply to judgment obtained before adoption of Code, under § 312. Colvin v. 
Phillips, 25 S. C. 228. 

An allegation of a payment by defendant on a day certain is an allegation of a new promise. 
McBrayer v. Mills, 62 S. C. 36, 39 S. E. 788. 



TITLE III. 

PARTIES TO CIVIL ACTIONS. 

Chapter I. Parties to Civil Actions Generally, 120. 
Chapter II. Executors and Administrators as Parties to Certain Civil 
Actions, 126. 



120 CODE OF CIVIL PROCEDURE 

CHAPTER I. 

Parties to Civil Actions Generally. 

(354) § 1. Party in Interest to Sue — Action by Grantee of Land 
Held Adversely. — Every action must be prosecuted in the name of the real 
party in interest, except as otherwise provided in Section 356, but this 
Section shall not be deemed to authorize the assignment of a thing in action 
not arising out of contract. But an action may be maintained by a grantee 
of laud in the name of the grantor, or his or her heirs or legal representa- 
tives, when the grant or grants are void by reason of the actual possession 
of a person claiming under a title adverse to that of the grantor at the 
time of the delivery of the grant, and the plaintiff shall be allowed to 
prove the facts to bring the case within this provision. 

Civ. Fro., '12, § 160; Civ. Pro., '02, § 132; 1870, XIV, § 134. 

Peoples, etc., Fertilizer Co. v. Charleston, etc., Railway, 83 S. C. 530, 534, 65 S. E. 733. 

This Section does no more than express a long established principle, that all parties at 
interest should he made parties. Cathcart v. Sugenheimer, 18 S. C. 123. 

Only the real party in interest can sue. Sullivan v. Hellams, 6 S. C. 184. 

A county, as real party in interest, may sue on official bond of County Treasurer. Green- 
ville Co. V. Runion, 9 S. C. 1. 

Distributees may sue in their own names upon the bond of administrator of their intestate. 
Kaminer v. Hone, 9 S. C. 253 ; or they may join as coplaintiffs with the Probate Judge. 
McCorkle v. Williams, 43 S. C. 66, 20 S. E. 744. 

Action may be brought in name of State alone on official bond of Clerk. State v. Moses, 18 
S. C. 366. • 

A mortgage given to City Council of Charleston to secure certain bonds issued by them to 
mortagor is properly sued in name of City Council. City Council v. Caulfield, 19 S. C. 201. 

Probate Judge, as successor of the Ordinary, cannot, as real party in interest, sue on 
administration bond given to his predecessor. Johnson v. Dawkins, 20 S. C. 528. 

This prevents prosecution of an action bv plaintiff after the extinguishment of his interest. 
Matthews v. Cantey, 48 S. C. 588, 26 S. B. 894. 

Action at law to recover property of lunatic or damages for its detention must be brought in 
name of lunatic by his committee. Cathcart v. Sugenheimer, 18 S. C. 123. 

The State a necessary party. Hopkins v. Clemson Agricultural College, 77 S. C. 12, 57 
S. E. 551. Insurer, subrogated to rights of insured, is only necessary party, ^tna Ins Co. v. 
C. & W. C. R. Co., 76 S. C. 103, 56 S. E. 788. Real party in interest, for whose benefit a 
contract is made may sue on contract. Couser v. Heath, 80 S. C. 466. 61 S. E. 973. 

A right of action against a Railroad Company for firing premises may be assigned, within 
the meaning of this statute. Bultman v. Railroad Co., 103 S. C. 512; 88 S. E. 279. 

Where the Court granted non-suit for defect of parties, in an action against a fraternal 
order by one beneficiary of a member, it properly refused to allow plaintiff to amend by 
making her trustee for the member's heirs at law; there being no evidence that she was such, 
while actions, under this section, must be prosecuted by real parties. William v. W. B. S. 
G. L. of S. C. 109 S. C. 233; 95 S. E. 517. 

Wife may maintain an action in tort against her husband for assault and battery under 
this section ; particularly in view of Sections 846 & 850. Prosser v. Prosser, 114 S. C. 45 ; 
102 S. E. 78. 

(355) § 2. Assignment of Thing in Action. — In the case of an assign- 
ment of a thing in action, the action by the assignee shall be without preju- 
dice to any set-off or other defense existing at the time of, or before notice 
of, the assignment; but this Section shall not apply to a negotiable prom- 
issory note or bill of exchange, transferred in good faith, and upon good 
consideration, before due. 

Civ. Pro., '12, § 161 ; Civ. Pro., '02, § 133 ; XIV, § 13.5. 

In action by assignee of sealed note against maker, defendant may set up debt due him by 
assignor before notice of assignment as equitable defense, though pleaded by counterclaim, with- 
out demand for judgment thereon. Sullivan v. Blythe, 14 S. C. 621. 

So assignee of share of distributee, who is surety on administration bond, takes subject to 
his liability on such bond. Bobo v. Vaiden, 20 S. C. 271. And assignee of bond and mortgage 
takes subject to credits that should go on them. Moffiett v. Hardin 22 S. C. 9. 

The assignee of mortgage takes subject to equities. Patterson v. Rabb, 38 S. C. 138, 17 S. 
E. 463. So assignee of insurance policy. Westbury v. Simmons, 57 S. C. 467 S. E. 765. 
The burden of proof to show cause of counterclaim or defense accrued since the assignment 
is on the plaintiff assignee. Bank v. Gadsden, 56 S. C. 313, 33 S. E. 575. 

This Section does not apply where party moves to set off judgment against him by a judg- 
ment he holds against the other party, when the judgment against him has been assigned by 
the other party for value. Simmons v. Ried, 31 S. C. 389, 9 S. E. 1058. 

This Section does not affect rights. Hodgman v. Western R. Co., 7 How. Pr. 492. Equitable 
defenses against note of corporation under seal. McLaughlin v. Braddy, 63 S. C. 433, 
41 S. E. 523. 



OF SOUTH CAKOLINA 121 

Assignee may show acts of negligence not known by him though known by his assignor. 
Maxwell v. Foster, 67 S. C. 385, 45 S. E. 927; Copeland v. Southern Railway, 76 S. C. 478, 
57 S. E. 535. 

Equitable defense against note of corporation under seal. McLaughlin v. Braddv, 63 S. C. 
433, 41 S. E. 523. 

Purchaser for value of bank stock assigned in blank, without notice of equities existing 
between assignor and assignee, takes stock free from such equities. Maxwell v. Foster, 67 
S. C. 377, 45 S. E. 927. 

(356) § 3. Actions by Executor, Trustee, Etc. — An executor or admin- 
istrator, a trustee of an express trust, or a person expressly authorized by 
Statute, may sue, without joining with him the person for whose benefit 
the action is prosecuted. A trustee of an express trust, within the mean- 
ing of this Section, shall be construed to include a person with whom, 
or in whose name, a contract is made for the benefit of another. 

Civ. Pro., '12, § 162; Civ. Pro., '02, § 134; 1S70, XIV, § 136. 

Commissioner in Equity could sue in his own name on bond given to him for benefits of 
others, although it had been turned over to the clerk, his successor. Billings v. Williamson, 
6 S. C. 119. 

Administrator may sue in his own name on note payable to him as such, though it had been 
transferred, and suit is for benefit of assignee. Carroll v. Still, 13 S. C. 430; and any time 
before final discharge. Hill v. Hill, 51 S. C. 134, 28 S. E. 309. 

Clerk of Court is proper partv to sue on bond given to former Commissioner in Equity in his 
county. Daniels r. Moses, 12 S._ C. 130; Clark v. Smith, 13 S. C. 585. 

Succeeding committee may bring action against executors of deceased committee for an 
a^:count, without joining the lunatic as a party. Ashley v. Holman, 15 S. C. 97. 

Where equitable relief as to estate of lunatics is sought, it seems that the committee may sue 
alone. Cathcart v. Sugenheimer, 18 S. C. 123. But he cannot sue in action at law. GriiHn r. 
Griffin, 20 S. C. 486. 

Superintendent of Penitenitary may sue in his own name for amounts due State by hirer 
of convicts for their escape. Lipscomb v. Seegers, 19 S. C. 425. 

Probate Judge, as successor of Ordinary, may sue in his own name upon administration bond 
given to his predecessor. Johnson i'. Dawkins, 20 S. C. 528. See, also, McCorkle v. Williams, 
43 S. C. 66, 20 S. E. 744. Guardian may sue without joining ward. Barnwell r. Marion, 

54 S. C. 223, 32 S. E. 313. Stranger to trust may sue trustee without joining beneficiaries. 
Price V. Krasnoff, 60 S. C. 172, 38 S. E. 413. 416. 

Action by trustee. Watford v. Windham, 64 S. C. 509, 42 S. E. 597. 

One making contract in his own name for benefit of himself and another may sue thereon 
in his individual capacity. Cousar v. Heath, etc., Co., 80 S. C. 466, 61 S. E. 973." 

In suit on such contract trustee should aver for whose benefit action is brought and facts 
from which trust relation arises, but here refusal of motion to require plaintifi: to so amend his 
complaint is not prejudicial error. Copeland v. Southern Railway, 76 S. C. 476, 57 S. E. 535. 

Applies where insured gives insurer receipt upon payment for loss assigning and subrogating 
insurer to any rights insured had against railroad company for damages for loss. Peoples, etc.. 
Fertilizer Co. r. Charleston, etc., Railway, 83 S. C. 530, 65 S. E. 733. 

A cause of action to remaindermen to recover possession from those claiming under an 
execution sale of the life estate did not accrue until the death of the life tenant. Rowell v. 
Hyatt, 108 S. C. 300; 94 S. E. 113. 

A Probate Judge may sue on a guardian's bond without joining the wards as parties. Smith, 
P. J. V. Moore, 109 S. C. 196: 95 S. E. 351 

(357) § 4. Actions by and Against Married Women. — When a mar- 
ried woman is a party, her husband must be joined with her, except that : 

1. "Wlien the action concerns her separate property, she may sue or be 
sued alone: Provided, That neither her husband nor his property" shall 
be liable for any recovery against her in any such suit; but judgment 
may be enforced by execution against her sole and separate estate in the' 
same manner, as if she were sole. 

2. Wlien the action is between herself and her husband, she may sue 
or be sued alone ; and in no case need she prosecute or defend by a guard- 
ian or next friend. 

Civ. Pro., '12, § 168 ; Civ. Pro., '02, § 18.5 ; 1S70, XIV, § 187. 

Where wife is sued upon contract other than for necessary support, the husband is a formal 
and not a substantial party. Ross v. Linder, 12 S. C. 592. 

Where an action against a married woman does not concern her separate property, her 
husband is a necessary partv: where it does he is only a proper partv. Lowry v. Jackson, 27 S. C. 
318. 3 S. E. 473: Seibles v. Railway Co., 80 S. C. 139, 61 S. E. 435. 16 L. R. A., N. S., 1026n. 

Infant married woman must sue by guardian ad litem. Heirs i'. Railroad Co., 75 S. C. 311, 

55 S. E. 457, 9 Am. & Eng. Ann. Cas. 1114. When not necessary. Messervy v. Messervy, 
82 S. C. 559, 64 S. E. 753. 

But where the action does concern her separate property and the husband has a vested right 
in it, then he is a necessary party. Bannister v. Bull, 16 S. C. 220. 

When not necessary. Messervy v. Messervy, 82 S. C. 559, 64 S. E. 753. 

A wife may maintain an action in tort against her husband for assault and battery on her. 
Prosser v. Prosser, 114 S. C. 45; 102 S. E. 78. 



122 CODE OF CIVIL PROCEDURE 

(358) § 5. Infants — Action by and Against. — When an infant is a 
party, he mnst appear by guardian, who may be appointed by the Court 
in which the action is prosecuted, or by a Judge thereof, or a Judge of 
Probate, Clerk of Court, or by a Master in those Counties where the office 
of Master now or may hereafter exist. 

Civ. Pro., '12, § 164; Civ. Pro., '02, § 136; 1S70, XIV, § 138; 1879, XVII, 32; 1898, 
XXII, 688. 

Probate .TiiAge may appoint guardian ad litem for infants parties to actions in the Court of 
Common Pleas. Trapier v. Waldo, 16 S. C. 276; Lyles v. Haskell, 35 S. C. 391, 14 S. E. 
829. A Magistrate may appoint a guardian ad litem in action before him. Wideman v. 
Patton, 64 S. C. 408, 42 S. E. 190. 

Infant must appear by guardian ad litem. Mitchell v. Cleveland, 76 S. C. 432, 57 S. E. 33 ; 
Hiers v. A. C. L. B. Co., 75 S. C. 311, 55 S. E. 457, 9 Am. & Eng, Ann. Cas. 1114. Reference 
to ascertain facts as to appointment. Jones v. Haile Gold Min. Co., 79 S. C. 47, 60 S. B. 35. 

Judgment not vacated because Clerk appointed guardian ad litem. Middleton v. Stokes, 71 
S. 0. 17, 50 S. E. 539. 

Failure to appoint guardian ad litem may be a harmless irregularity. Jones v. Haile Gold 
Min. Co., 79 S. C. 51, 60 S. E. 35; Robertson v. Blair, 56 S. C. 104, 34 S. B. 11. Void 
appointment by Clerk validated by order of Circuit Court. Ex parte Pearson, 79 S. C. 302, 
60 S. E. 706. 

(359) § 6. Guardian — How Appointed. — The guardian shall be ap- 
pointed as follows : 

1. When the infant is plaintiff, upon the application of the infant, if he 
be of the age of fourteen years; if under that age, upon the applica- 
tion of his general or testamentary guardian, if he has any, or of a relative 
or friend of the infant : if made by a relative or friend of an infant, notice 
thereof must first be given to such guardian, if he has one ; if he has 
none, then to the person with whom such infant resides. 

2. When the infant is defendant, upon the application of the infant, 
if he be of the age of fourteen years, and apply within twenty days after 
the service of the summons. If he be under the age of fourteen, or neglect 
so to apply, then upon application of any other party to' the action, or 
of a relative or friend of the infant, after notice of such application being 
first given to the general or testamentary guardian of such infant, if he 
has one within this State ; if he has none, then to the infant himself, if 
over fourteen years of age, and within the State ; or, if under that age, 
and within the State, to the person with whom such infant resides. And 
in an action for the partition of real property, or for the foreclosure of 
a mortgage or other instrument, or any other case affecting real estate in 
which an infant has an interest, when an infant defendant resides out of 
the State or is temporarily absent therefrom, the plaintiff may apply to 
the Court in which the action is pending, or to a Judge, Clerk or Master 
thereof, and will be entitled to an order designating some suitable person 
to be the guardian of the infant defendant for the purpose of Ihe action, 
unless the infant defendant, or some one in his behalf, within a number 
of days after the service of a copy of the order, which number of days shall 
De in the said order specified, shall procure to be appointed a guardian 
ad litem for the said infant ; and the Court or officer appointing shall give 
special directions in the order for the manner of the service thereof, which 
may be upon the infant. And in case the infant defendant, having an 
interest in the events of the action, shall reside in any State with which 
there shall not be a regular communication by mail, on such fact satisfac- 
torily appearing to the Court, the Court may appoint a guardian ad litem 
for such absent infant party, for the purpose of protecting the right of 



OF SOUTH CAROLINA 123 

such infant in said action, and on such guardian ad litem process, plead- 
ings and notices in the action may be served in the like manner as upon 
a party residing in the State. 

Civ. Pro., '12, § 165; Civ. Pro., '02, § 1.37; ISTO, XIV, § 139; 1912, XXYII, 623. 

What is sufficient notice of application for appointment of guardian ad litem. Lyles v. 
Haskell, 35 S. C. 391, 14 S. E.-829. 

No jurisdiction of the persons of infants can be obtained except by exact compliance with the 
requirements of this Section. Finley v. Robertson, 17 S. C. 435; Riker v. Vaughn, 23 S. C. 
187, Tederall v. Bouknight, 25 S. C. 275. 

Jurisdiction of a minor under fourteen is obtained by service on her of summons and com- 
plaint, and acceptance by her father, who is her general guardian, of service of the summons 
and complaint, and notice of appointment of guardian ad litem, although she resides with 
another, and appointment of guardian ad litem upon petition of her father. Barrett v. Moise, 
61 S. C. 569, 39 S. E. 755. Irregularity in service and appointment of guardian ad litem 
for infant may be cured by subsequent proceedings. Easterby v. Mcintosh, 51 S. C. 397, 
29 S. E. 87. 

For mere irregularity in appointment of guardian decree will not be set aside. Middleton v. 
Stokes, 71 S. C. 21, 50 S. E. 539. 

(360) § 7. Who May Be Plaintiffs. — All persons having an interest in 
the subject of the action, and in obtaining the relief demanded, may be 
joined as plaintiffs, except as otherwise provided in this Title. 

Civ. Pro., '12, § 166 ; Civ. Pro., '02, § 13S ; 1870, XIV, § 140. 

The joinder here is permissive. Bliss Code Pleadings, 61; Roberts v. Johns, 10 S. C. 101; 
Hellams v. Switzer, 24 S. C. 39; Stallings v. Barrett, 26 S. C. 474, 2 S. E. 483; McCorkle r. 
Williams, 43 S. C. 66, 20 S. E. 744. 

Citizens and taxpayers of county may maintain action in equity to enjoin commissioners 
appointed by Governor to have preliminarv surveys made for proposed new county. Lamar v. 
Croft, 73 S. C. 407, 53 S. E. 540. 

All parties to contract must be joined in suit thereon. Park v. Southern R. Co., 87 S. 
C. 308, 58 S. E. 951. 

Uuder this Section and § 362, the assignees of their respective portions, as evidenced 
by bonds executed by the purchaser of lands under partition for purchase money, all of which 
are secured by one mortgage, which too is assigned by Master as the interest of parties appear, 
may join in one action for foreclosure. Under § 360 above recited, all persons having 
an interest does not confine each to the same interest. Turner v. Clark, 109 S. C. 132 ; 95 
S. E. 334. 

All stockholders of a corporation who have been induced to sell their stock by reason of the 
fraud of the manager and director thereof mav be joined as plaintiffs in one action under this 
Section. Black v. Simpson, 94 S. C. 712; 77 S. E. 1023. 

(361) § 8. Who May Be Defendants. — Any person may be made a 
defendant who has or claims an interest in the controversy adverse to the 
plaintiff, or who is a necessary party to a complete determination or set- 
tlement of the questions involved therein, and in an action to recover the 
possession of real estate, the landlord and tenant thereof may be joined 
as defendants ; and any person claiming title or a right of possession to 
real estate may be made parties plaintiff or defendant, as the case may 
require, to any such actions. 

Civ. Pro., '12, § 167 ; Civ. Pro., '02, § 139 ; 1870, XIV, § 141. 

A joint action upon a joint and several bond, by two obligators, may be brought against the 
survivor of them and the executor of the deceased one. Trimmier v. Thompson, 10 S. C. 164; 
Susong V. Vaiden, lb. 247; Weisenfield v. Byrd, 17 S. C. 106. 

In action for tort, one cause of action against two defendants cannot be joined with a cause 
of action against one of them. Himes v. Jarrett, 26 S. C. 480, 2 S. E. 393. 

In actions for foreclosure, a party in possession, claiming title to land, was properly made a 
party defendant. Sale v. Meggett, 25 S. C. 72. 

Personal representatives and grantees of a decedent are proper parties to action to 
marshal his assets and set aside conveyances as fraudulent. Sheppard v. Green, 48 S. C. 
165, 26 S. E. 224. 

Joinder of party interested in results of action discretionary. Murray Drug Co. r. Harris, 
77 S. C. 412, 57 S. E. 1109. 

Grantee of cotenant necessary party in partition proceedings. Ex parte Union Mfg. & Pr. 
Co., 81 S. C. 265, 62 S. E. 259, 128 Am. St. Rep 908. 

One cotenant has right to make all his cotenants parties. Whitaker v. Manson, 84 S. C. 
29, 33, 65 S. E. 953, 137 Am. St. Rep. 835. 

Under this Section subsequent mortgagees or lienors were proper parties to an action to 
foreclose a prior mortgage, as the courts do not favor multiplicity of suits where all parties 
are affected and directly interested. Robinson v. McMaster, 108 S. C. 384; 94 S. E. 879. 

(362) § 9. One or More May Sue or Defend for AH.— Of the parties to 
the action, those who are united in interest must be joined as plaintiffs or 
defendants ; but if the consent of any one who should have been joined 



124 , CODE OF CIVIL PROCEDURE 

as plaintiff camiot be obtained, he may be made a defendant, the reason 
thereof, being stated in the complaint; and when the question is one of a 
common or general interest of many persons, or when the parties are very 
numerous and it may be impracticable to bring them all before the Court, 
one or more may sue or defend for the benefit of the whole. 
Civ. Pro., '12, § 168 ; Civ. Pro., '02, § 140 ; 1870,, XIV, § 142. 

Action by a few members on behalf on an unincorporated association. Stemmerman v Lilien- 
thal. 54 S. C. 440, 32 S. E. 535. 

This provision applies to legal as well as equitable action; but does not abolish entirely the 
common law requirements in legal actions for torts. Hellams v. Switzer, 24 S. C. 89- Himes v 
Jarrett, 26 S. C. 480, 2 S. E. 393. 

Two tenants in common can join in action to recover possession of their shares in land from 
a stranger without making other cotenants parties. Bannister v. Bull, 16 S. C. 220. 

An action by single- creditor against receiver and stockholder of an insolvent bank for his 
debt is defective for want of parties ; it should be brought by plaintiff on belialf of himself and 
other creditors. Terry v. Calnan, 4 S. C. 514. And it should be against all the stockholders, 
and not one alone. Terry v. Martin, 10 S. C. 263. 

One who asserts distinct claim, peculiar to himself, cannot join other creditors or claimants 
with him. Warren v. Raymond, 17 S. C. 163. 

Where plaintiffs sue for benefit of whole class the judgment is binding and conclusive upon 
all parties of the class who stand out. State v. C. & L. R. Co., 13 S. 0. 290. 

It is only where one or more may sue or defend for the benefit of the whole class that 
counsel fee can be allowed out of the common fund. Wilson v. Kelly, 30 S. 0. 483, 9 S. E. 523. 

First clause of section is mandatory. Murray Drug Co. v. Harris, 77 S. C. 412, 57 S. E. 
1109. 

Rights of remote residuary legatees may be adjudicated by making one member of the class 
a party to represent the class. Paber v. Faber, 76 S. C. 156, 56 S. E. 677. 

Remaindermen not in esse. Bernard v. Bernard, 79 S. C. 364, 60 S. E. 700, 128 Am. 
St. Rep. 852; Hunt v. Gower, 80 S. C. 80, 61 S. E. 218, 28 Am. St. Rep. 862. 

Infant remaindermen not made party not bound by judgment. Mitchell v. Cleveland, 76 S. 
C. 432, 67 S. E. 33. Jurisdiction where proper parties are before Court. Kolb v. Booth, 
80 S. C. 601, 61 S. E. 942. 

One cotenant may bring action for possession of land against stranger in his own name in 
behalf of himself and for benefit of those deriving title in common with him, where parties are 
very numerous and it is impracticable to bring them all before the Court. Whitaker v. Manson, 
84 S. C. 29, 65 S. E. 953, 137 Am. St. Rep. 835, distinguishing Bannister v. Bull, 16 S. C. 
220, and Wilson v. Kelly, 30 S. C. 483, 9 S. E. 523. 

Showing insuiBcient to render it necessary for one alleged to be interested in transaction to 
be made party defendant. Murray Drug Co. v. Harris, 77 S. C. 410, 57 S. E. 1109. 

Springfield, etc., Ins. Co., v. Richmond, etc., R. Co., 48 Fed. 360. 

Where, in an action for partition land was sold to one who gave bonds for unpaid portions 
of purchase price, all of the bonds being secured by one mortgage and afterwards several bonds 
assigned to different parties, such parties are properly joined as plaintiffs in an action to fore- 
close the mortgage and recover judgment. Turner v. Clark, 109 S. C. 132; 95 S. E. 334. 

In_ a suit by two subscribers to a school building fund to restrain a proposed use of the 
building for a different purpose, estoppel of one plaintiff's right to object does not defeat the 
right of the other plaintiff to the relief. MeCormac v. Evans, 107 S. C. 40; 92 S. E. 19. 

(363) § 10. One Action Against the Different Parties to Bills and 
Notes. — Persons severally liable upon the same obligation or instrument, 
including the parties to bills of exchange and promissory notes may all, or 
any of them, be included in the same action, at the option of the plaintiff. 

Civ. Pro., '12, § 169; Civ. Pro., '02, § 141; 1870, § XIV, § 143. 

Trimmier v. Thompson, 10 S. C. 164; Susong v. Vaiden, lb. 247; Weissenfield v. Byrd, 17 
S. C. 106. 

(364) § 11. Action — When Not to Abate. — No action shall abate by 
the death, marriage, or other disability of a party, or by the transfer of any 
interest therein, if the cause of action survive or continue. In case of 
death, marriage, or other disability of a party, the Court, on motion, at 
any time within one year thereafter, or afterwards, on a supplemental com- 
plaint, may allow the action to be continued by or against his representative 
or successor in interest. In case of any other transfer of interest, the action 
shall be continued in the name of the original party, or the Court may 
allow the person to whom the transfer is made to be substituted in the 
action. 

After a verdict shall be rendered in any action for a wrong, such action 
shall not abate by the death of any party, but the case shall proceed there- 
after in the same manner as in cases where the cause of action now sur- 
vives by law. 



OF SOUTH CAROLINA 125 

At any time after the death, marriage or other disability of the party 
plaintiff, the Court in which action is pending, upon notice to such person 
as it may direct, and upon application of any person aggrieved, may, in 
its discretion, order that the action be deemed abated, unless the same be 
continued by the proper parties, within a time to be fixed by the Court, 
not less than six months nor exceeding one year from the granting of the 
order. 

Civ. Pro., '12, § 170; Civ. Pro., '02, § 142; 1870, XIV, § 144. 

Does not authorize continuance of action in name of the pledgee of notes, as securities, after 
the extinguishment of his interest. Matthews v. Cantey, 48 S. C. 588, 26 S. E'. 894. 

Proceedings by rule to show cause why the action should not be continued against the new 
parties in interest; practice thereon. Dunham v. Carson, 42 S. C. 383, 20 S. E. 197; De 
Loach V. Sarratt, 55 S. C. 254, 33 S. E. 2; Pickett v. Fidelity and Casualty Co., 60 S. C. 477, 
68 S. E. 160; Shull v. Bradford, 59 S. C. 573, 37 S. E. 30; ShuU v. Caughman, 54 S. C. 
203, 32 S. E. 301; Quick r. Campbell, 44 S. C. 386, 22 S. E. 479. 

Action for rents and profits continued against executrix of person in possession of land. 
Rabb V. Patterson, 42 S. C. 528, 20 S. E. 540. 

An agreement to arbitrate, which does not name nor proyide number and appointment of the 
arbitrators, does not discontinue action after death of plaintiff, reyiyed by administratrix. Lynch 
V. Goodwin, 6 S. C. 144. 

This Section does not determine what actions so suryiye, but the common law rule still 
governs; and an action ex delicto does not survive. Huff v. Watkins, 20 S. C. 477. 

No leave is necessary to file such supplemental complaint. Parnell r. Maner, 16 S. C. 348; 
Arthur v. Allen, 22 S. C. 432. And this right to so revive is not limited in point of time. 
Best V. Sanders, 22 S. C. 589. 

Where action is so continued by order, with notice to appear and answer, it is not requisite 
that there be a summons also. Lyles v. Haskell, 35 S. C. 391, 14 S. E. 829. But where 
continued by supplemental complaint, summons is necessary. Arthur v. Allen, 22 S. C. 432. 

Rule to show cause why action should not be continued need not have summons. Sims v. 
Davis, 70 S. C. 362, 376, 49 S. E. 872. Proper practice on substitution. Marion v. Charleston, 
72 S. C. 576, 52 S. E. 418. 

The cause of action being assignable, non-suit should not be granted because of assignment 
after commencement of action, but substitution of the assignee should be allowed under this 
section. Evans v. Watkins, 112 S. C. 100 S. E. 153. 

On motion by the successor in interest to rights of a deceased plaintiff, under this Section, 
for leave to continue or revive the action, the Court will confine its consideration to the com- 
petency of the movant to revive or continue the action, and the sufficiency of his application 
without considering defenses or objections to the action on its merits. Ex parte Jackson, 
99 S. C. 66: 82 S. E. 990. 

(365) § 12. Court to Decide Controversy, Etc. — Inter-Pleading. — The 

Court may determine any controversy between the parties before it, when 
it can be done without prejudice to the rights of others, or by saving 
their rights ; but when a complete determination of the controversy cannot 
be had without the presence of other parties, the Court must cause them 
to be brought in. And when, in an action for the recovery of real or per- 
sonal property, a person not a party to the action, but having an interest 
in the subject thereof, makes application to the Court to be made a party, 
it may order him to be brought in by the proper amendment. 

A defendant against whom an action is pending upon a contract, or for 
specific, real, or personal property, may, at any time before answer, upon 
affidavit that a person not a party to the action, and without collusion by 
him, makes against him a demand for the same debt or property, upon due 
notice to such person and the adverse party, apply to the Court for an 
order to substitute such person in his place, and discharge him from lia- 
bility to either party, on his depositing in Court the amount of the debt, 
or delivering the property, or its value, to such person as the Court may 
direct ; and the Court may, in its discretion, make the order. 

Civ. Pro., '12, § 171 ; Civ. Pro., '02, § 143 ; 1870, XIV, § 14.5. 

Where plaintiff thinks a third person is a necessary party to the complete determination of 
the action, he should take proper steps to have him made defendant. Eakin v. Knox, 6 S. C. 14. 

In action by single creditor against receiver of insolvent corporation and number of individual 
stockhojders, all creditors are necessary parties and should be brought in. Terry v. Calnan, 4 
o. O. 5 Ob. 

As to substituting defendant. Patterson v. Pagan, 18 S. C. 584. 

Where land is sold under execution after actions commenced to foreclose mortgages on it and 
notices of Us pendens filed, the purchaser at such sale may intervene bv petition as a proper 
party, charging the mortgages to be fraudulent. Ex parte Moblev, 19 S. C. 337. 



126 CODE OF CIVIL PROCEDURE 

The provision for interpleader applies only where the claimant is not a party to the action. 
Brock •(•. Southern By. Co., 44 S. C. 444, 22 S. E. 602. 

,ludge litis discretionary power to add names of defendants. Hellams v. Prior, 64 S. C. 544, 
43 S E 25- Greenwood Loan and Guarantee Association v. Williams, 71 S. C. 425, 51 S. E. 
272:' Hellams v. Prior, 64 S. C. 296, 42 S. E. 106. 

Purchasers at judicial sales become parties to action. Ex parte Quails, 71 S. C. 87, 50 S. E. 
646: Corbett v. Fogle, 72 S. C. 321, 51 S. E. 884. Partition where parts of land have been 
conveved bv cotenants to different parties. Woodward v. Lumber Co., 73 C. S. 31, 52 S. B. 
733. 114 Am. St. Rep. 76. 

Whether one interested in the result of a suit should be made a party is within discretion of 
the trial Judge. Murray Drug Co. v. Harris, 77 S. C. 410, 57 S. E. 1109. 

Provision that other parties must be brought in must be read in connection with § 357 and 
does not apply in an action at law in a Federal Court as these provisions are derived from 
the practice in equity. Springfield, etc., Ins. Co., v. Richmond, etc., R. Co., 48 Fed. 360. 

In action by mortgagor of a chattle after condition broken, against a third party or negligent 
injurv to the chattel, defendant may protect himself by having mortgagee brought in. Wilkes v. 
Southern Railway, 85 S. C. 346, 350, 67 S. E. 292, 137 Am. St. Rep. 890, 21 Am. & Eng. 
Ann. Cas. 79. 

Where mortgagor held under a deed in which the habendum read, "Unto the said L. 
(mortgagor) during her natural life, and at her death to be divided equally between the body 
issue of H. P. (Grantor) and L," and to "her heirs and assigns forever," and that some of 
her children were living at the date of the deeds and were still living, such children were 
parties necessarv to be brought in under this Section in order to the determination of the con- 
troversy. Bank of Prosperity v. Dominick, 106 S. C. 120; 90 S. E. 264. 

The "non joinder of the corporation, a necessary party defendant, might be cured by order 
of the Court under this Section, providing that where a complete determination of the con- 
troversv cannot be had without the presence of other parties, the Court must cause them to be 
brought in. Kickbush v. Ruggles, 105 S. C. 525; 90 S. E. 163. 



CHAPTER II. 

Executors and Administrators as Parties to Certain Civil Actions. 

(366) § 1. Copies of Orders by Probate Judge Evidence of Ap- 
pointment of Executors or Administrators. — It shall be the duty of the 
Judge of Probate, on application by the executor or administrator of any 
deceased person, to whom letters testamentary or of administration have 
been respectively granted, to furnish a true copy of such order as he may 
make, concerning the probate of the will, or granting of administration, 
certified under his hand, which shall be sufficient evidence of the appoint- 
ment of such executor or administrator in any Court in this State. 

Civ. '12, § 3954 ; Civ. '02, 2850 ; G. S. 2182 ; R. S. 2314 ; 1789, V, 109 ; LS39, XI, 62. 

Hankinson v. C. C. & A. Ry. Co. 41 S. C. 1, 19 S. E. 206. 

Action by administrator for conversion of property after intestate's death. Cauthen v. 
Green & Hines, 80 S. C. 432, 61 S. E. 957, 

(367) § 2. Civil Action for Wrongful Acts Causing Death.— When- 
ever the death of a person shall be caused by the wrongful act, neglect, 
or default of another, and the act, neglect, or default is such as would, if 
death had not ensued, have entitled the party injured to maintain an action 
and recover damages in respect thereof, then, and in every such case, the 
person or corporation who would have been liable, if death had not en- 
sued, shall be liable to an action for damages, notwithstanding the death 
of the person injured, although the death shall have been caused under such 
circumstances as make the killing in law a felony. 

Civ. '12, § 39.55; Civ. '02, § 2S51 ; G. S. 2183; R. S. 2315; 1859, XII, 82.5. 

Action under the North Carolina Statutes. Dennis v. A. C. L. R. R., 70 S. C. 254, 49 
S. E. 869, 106 Am. St. Rep. 746; Free v. Southern Ry. Co., 78 S. C. 57,- 58 S. E. 952. 
Action in South Carolina under Georgia Statute. Bussey v. Ry., 73 S. C. 215, 53 S. E. 165. 
Action does not abate on death of sole beneficiarv at time of its commencement. Morris v. 
Spartanburg Ry. Co., 70 S. C. 297, 49 S. E. 854. 

Brickman v. So. Ry., 74 S. C. 306, 54 S. E. 553. 

Gen. Stat. 2183. 

Action under this section is action at criminal law for purposes of federal jurisdiction. Brisen- 
den V. Chamberlain, 53 Fed. 307. 

Administrator cannot maintain action for wilful and negligent mutilation of body of liis 
intestate. Pinson v. Southern Railway, 85 S. C. 355, 67 S. E. 464. 

In action by parent for injury to parent resulting from injury to child, as, for example, for 
loss of service of child, ordinary rule of contributory negligence prevails. Watson v. Southern 
Railway, 66 S. C. 47, 51, 44 S. E. 375. 



OF SOUTH CAROLINA 127 

(368) § 3. Beneficiaries of Action for Wrongful Death — Damages Re- 
coverable — Distribution. — Every such action shall be for the benefit of 
the wife or husband and child, or children, of the person whose death shall 
have been so caused; and if there be no such wife, or husband, or child, 
or children, then for the benefit of the parent or parents; and if there be 
none such, then for the benefit of the heirs at law or the distributees of the 
person whose death shall have been caused and shall be brought by or in 
the name of the executor or administrator of such person; and in every 
such action the jury may give such damages, including exemplary dam- 
ages where such wrongful act, neglect or default was the result of reck- 
lessness, wilfulness or malice, as they may think proportioned to the injury 
resulting from such death to the parties respectively, for whom and for 
whose benefit such action shall be brought. And the amount so recovered 
shall be divided among the beforementioned parties, in such shares as they 
M^ould have been entitled to if the deceased had died intestate and the 
amount recovered had been personal assets of his or her estate. 

Civ. '12, § 3956; Civ. '02, § 28.52; G. S. 21S4 ; R. S. 2316; 18-59, XII, 825; 1898, 
XXII, 788; 1901, XXIII, 743; 1902, XXIII, 1071. 

Provision for punitive damages constitutional. Hull v. S. A. L. Rv., 76 S C 278 57 S 
E. 28, 10 L. R. A., N. S., 1213; Osteen v. So. Ry., 76 S. C. 368, 57 S. E. 196. 

This gives a new statutory action which is an asset, only enforceable by the administrator or 
executor of deceased, and sufficient to support grant of administration. In re Mayor's Estate 
60 S. C. 401, 38 S. E. 634; Edgar v. Castello, 14 S. C. 20; Davis v. R. R., 21 S. C. 93'. 
And he has precisely the same right to recover as the deceased would have if living and suing 
for damages for injury. Hooper i-. R. R., 21 S. C. 541; Price v. R. R., 33 S. C. 556, 12 
S. E. 413; Watson v. Southern Railway, 66 S. C. 47. And release by person injured will 
debar such action. Price v. R. R., 33 S. C. 556, 12 S. E. 413. Such action lies for benefit of 
adult children or deceased. Petrie v. R. R., 29 S. C. 303, 7 S. E. 515. The complaint must 
state who are said beneficiaries and that the action is for their benefit. Lilly v. R. Co , 32 
S. C. 142, 10 S. E. 932; Nohrden v. N. E. Ry. Co., 54 S. C. 492, 32 S. E. 524. The right is 
given irrespective of time deceased survived after the injury. Reed v. N. E. R. Co., 37 S. C. 
42, 16 S. E. 289. Circuit Judge may grant new trials on account of excessive verdicts as in 
other cases. Stuckey v. A. C. L. Ry. Co., 57 S. C. 395, 35 S. E. 550. Evidence as to actual 
damages. Youngblood v. S. C. & G. R. Co., 60 S. C. 9, 38 S. E. 232. Suffering of deceased 
not an element of. Stuckey v. Atlantic Coast Line R. Co., 60 S. C. 237, 38 S. E. 416. What 
are. Nohrden v. N. E. R. Co., 59 S. C. 87, 37 S. E. 228. Pecuniary loss need not be 
shown. Mason v. So. Ry. Co., 58 S. C. 70, 36 S. E. 440; Strother v. S. C. & G. R. Co., 47 
S. C. 375, 25 S. E. 272. Exemplary damages were not recoverable prior to the amendment of 
1901. Garrick v. Ry. Co., 53 S. C. 448, 31 S. E. 334: Nohrden v. Ry. Co., 54 S. C. 492, 32 
S. E. 524; Osteen v. Railway, 76 S. C. 368, 57 S. E. 196. It does not give right to sue 
county after death of party injured through defective bridge. All v. Barnwell Co., 29 S. C. 
161, 7 S. E. 58. 

The word "of" in Act of 1898 constructed "or;" heir and distributee synonymous. Kitchen v. 
R. Co., 68 S. C. 554, 48 S. E. 4, 1 Am. & Eng. Ann. Cas. 747. 

Does not include relatives of illegitimate. McDonald v. So. Rv., 71 S. C. 352, 51 S. E. 138, 
110 Am. St. Rep. 576, 2 L. R. A., N. S. 640n. 

Croft V. So. Cotton Oil Mills, 83 S. C. 232, 65 S. E. 216. 

Action did not abate because of, death of father, sole beneficiary when commenced. Morris v. 
Spartanburg Ry. Co., 70 S. C. 279, 49 S. E. 854. 

Father and mother share equally where there are no children. Childs v. Bolton, 69 S. C. 
555, 48 S. E. 618. 

Amendment permitted strikinjg out names of two parties named in complaint as beneficiaries. 
McDaniel v. A. C. L. Ry., 76 S. C. 189, 56 S. E. 956. 

While not essential to the cause of action, pecuniary loss is an element of damages, and where 
there is no proof as to such loss its absence mav be commented on. Barksdale v. S. A. L. Ry., 
76 S. C. 183, 56 S. E. 906; Trimmier v. A. C. L. Ry. Co., 81 S. C. 213, 62 S. E. 209. 

Measure of damages. Osteen v. Rv., 76 S. C. 368, 57 S. E. 196; Brickman v. Ry., 74 S. C. 
306, 54 S. E. 553. 

Action by administrator under foreign Statute (Ga.). Bussey v. Ry., 73 S. C. 215, 53 S. E. 
165. 

Provision as to allowance of exemplary damages is constitutional. Hull v. Seaboard Air 
Line Railway, 76 S. C. 278, 57 S. E. 28. 10 L. R. A., N. S., 1213; Osteen v. Southern 
Railway, 76 S. C. 368, 379, 57 S. E. 196. 

(369) § 4. Limitation of Actions for Wrongful Death — Liability for 
Costs. — All such actions must be brought within six years from the death 
of such person, and the executor or administrator, plaintiff in the action, 
shall be liable to costs in case there be a verdict for the defendant, or 
nonsuit or discontinuance, out of the goods, chattels and lands of the 
testator or intestate, if any. 



128 CODE OF CIVIL PROCEDURE 

Civ. '12, § 3957 ; Civ. '02, § 2853 ; 1903, XXIV, 96. 

McDaniel v. Atlantic Coast Line Railway, 76 S. C. 15, 18, 56 S. E. 543. 

Not a Statute of Limitation, but a condition precedent. Dennis v. A. C. L. Ry., 70 S. C. 
254, 49 S. E. 869, 106 Am. St. Rep. 746. 

(370) § 5. Exception to Limitation of Actions for Wrongful Death. — 

The provisions of the three preceding Sections of this Chapter shall not 

apply to any case where the person injured has, for such injury, brought 

action, which has proceeded to trial and final judgment before his or her 

death. 

Civ. '12, § 3958 ; Civ. '02, § 2854 ; G. S. 2186 ; R. S. 2318 ; 1859, XII, 825. 

McDaniel v. Atlantic Coast Line Railway, 76 S. C. 15, 18, 56 S. E. 543; Price v. Ry. Co., 
33 S. C. 556, 12 S. E. 413. 

(371) § 6. Actions Against Trespassers. — Executors in cases of tres- 
pass done to their testators, as of the goods and chattels of the same testa- 
tors carried away in their life, shall have an action against the trespassers, 
and recover their damages in like manner as they, whose executors they are, 
should have had if they were in life. 

Civ. '12, § 3959 ; Civ. '02, § 2855 ; G. S. 2187 ; R. S. 2319 ; 4 Ed. 3, c. 7 ; 1712, II, 425. 
Middleton v. Robertson, 1 Bay 58; Huff v. Watkins, 20 S. C. 477. 

(372) § 7. Executions on Judgments Held by Executors or Adminis- 
trators De Bonis Non. — "Where any judgment after a verdict shall be had 
by or in the name of any executor or administrator, an administrator de 
bonis non may take out execution upon such judgment. 

Civ. '12, § 3960; Civ. '02, § 2856; G. S 2188; R. S. 2320; 17 C. 2, c. 8 ; 1712, II, 521. 

(373) § 8. Actions Against Executors When One or More Are Out of 

State. — In cases where there are two or more executors or administrators 
to any estate, and any one or more of them has withdrawn, or shall with- 
draw, or reside out of the State, it shall and may be lawful for any cred- 
itor or person having right or cause of action against such estate to com- 
mence his action against all the executors or administrators, naming and 
setting forth therein the executor or administrator, one or more, who is or 
are out of the State ; and the summons being served in the usual form upon 
those who are within the State, the suit shall be deemed to be good and 
effectual in law, to all intents and purposes : saving only that the judg- 
ment in such cases shall not extend to work any devastavit upon the person 
or persons so absent, or to affect him, her or them in their private right. 
Civ. '12, § 3961 ; Civ. '02, § 2857 ; G. S. 2189 ; R. S. 2321 ; 1793, VII, 282. 

(374) § 9. When Actions May Be Commenced Against Executor or 
Administrator. — No action shall be commenced against any executor or 
administrator for the recovery of the debts due by the testator or intes- 
tate, until twelve months after such testator's or intestate's death. 

Civ. '12, § 3962 ; Civ. '02, § 2858 ; G. S. 2190 ; R. S. 2322 ; 1789, V, 112 ; 1885, XIX, 
158. 

Judgment sustained where rendered after the twelve months though suit was commenced within 
that period. Hendrix v. Holden, 58 S. C. 495, 36 S. E. 1010. Such time must be added to 
the time fixed by the Statute of Limitations for bringing such action. Moses v. Richard, 2 N. 
& McC. 259; Nicks v. Martindale, Harp. 136; McCullough v. Speed, 3 McC. 345; Wilks v. 
Robison, 3 Rich. 182; Lawton v. Bowman, 2 Strob. 190; Moore v. Smith, 29 S. C. 254, 7 
S. E. 485. Does not apply to executors de son tort. Chambers v. Davidson, 1 Hill 50. 
Applies to action in equity against heirs or devisees. Cleveland iK Mills, 9 S. C. 430. Does 
not apply to actions commenced in lifetime and continued against the personal representative. 
Quick V. Campbell, 44 S. C. 386, 22 S. E. 479. 



OF SOUTH CAROLINA 129 

Does not affect actions for foreclosure where no judgment for deficiency is sought against the 
executor or administrator. Green r. McCarter, 64 S. C. 290, 42 S. E. 157. Effect on limitation 
of action. Gaston v. Gaston, 80 S. C. 157, 61 S. E. 393. 

(375) § 10. Survival of Right of Action. — Causes of action for and in 
respect to any and all injuries and trespasses to and upon real estate and 
any and all injuries to the person or to personal property, shall survive 
both to and against the personal or real representative (as the case may 
be) of the deceased persons, and the legal representatives of insolvent per- 
sons, and defunct or insolvent corporations, any law or rule to the con- 
trary notwithstanding. 

Civ. '12, § 3963; Civ. '02, § 2S59 ; R. S. 2323; 1S02, XXI, IS; 1905, XXIY, 94.5. 

Applied. Allen v. Union Oil and Mfg. Co., 59 S. C. 571, 38 S. E. 274. 

Clause of action for trespass on realty survives. Duke v. Postal Tel. Co., 71 S. C. 95, 50 
S. E. C75 Does not api'lv to trespass committed jjrior to its enactment. Sims v. Davis, 70 
S. C. 362, 49 S. E. 872. Question ■n'hether action has abated is for the Common Pleas. Ex parte 
Conrad, 75 S. C. 1, 54 S. E. 799. Not retroactive. Lorick v. Palmetto Nat. Bank, 76 S. C. 
500, 57 S. E. 527. Whether right of action for trespass on real estate survives to the personal 
or real reiiresentative should be made by demurrer or answer. Voyles v. Postal Tel. Co., 73 
S. C. 430, 50 S. E. 68. 

As to the survival of action for death due to defects in highway, street or bridge, see 
§ (3165), Vol. III. 



TITLE IV. 

OF THE PLACE OF TRIAL OF CIVIL ACTIONS. 

(376) § 1. Actions to Be Tried Where Subject Matter Situated. 

■ — Actions for the following causes must be tried in the countj' in which 
the subject of the action, or some part thereof, is situated, subject to the 
power of the Court to change the place of trial, in the cases as lierein-i 
after provided : 

1. For the recovery of real property, or of an estate or interest therein, 
or for the determination in any form of such right or interest, and for 
injuries to real property. 

2. For the partition of real property. 

3. For the foreclosure of a mortgage of real property. 

4. For the recovery of personal property destrained for any cause : Pro- 
vided, That nothing in this Section contained shall be so construed as to 
prevent the hearing of any of the said actions by consent of the parties or 
their attorneys, and of the guardian ad litem of any infant party to said 
action, in a county other than that in which said action may have been 
brought and may be pending, or other than that in which the property is 
situated. 

Civ. Pro., '12, § 172; Civ. Pro., '02, § 144; 1S70, XIY, § 146; 1SS7, XIX, S3o ; 1894, 
XXI, 793. 

The regulations of this Title are intended solely for the benefit of the parties to the action, 
and parties outside have no rights in the matter. Trapier v. Waldo, 16 S. C. 276. 

Wetmore v. Scalf, 85 S. C. 285, 67 S. E. 298. 

The words "must be tried" are imperative and cannot be disregarded. Judgment in anv 
other countv is a nullity. Trapier v. Waldo, 16 S. C. 276; Steele v. Exum, 22 S. C. 276 
Bacot V. Lowndes, 24 S. C. 392; Ware v. Henderson, 25 S. C. 385; Silcox v. Jones, 80 S. C. 
488, 61 S. E. 948. 

This Section does not embrace an action by creditors of estate for account and marshaling 
of assets in county where executor resides. Jordan v. Moses, 10 S. C. 431. 

In such action in one county, a part of the lands lying in that county and tract in another 
county, the title to that tract may be tried in county where action is brought. Barret r. 
Watts', 13 S. C. 441. But where "the land devised has been transferred by devisees, and such 
action seeks first to set aside the deeds, it comes within this Section and must be tried in 
county where land is situate. Bacot v. Lowndes, 24 S. C. 892. Where action is against one 
defendant residing in county of F and another defendant residing in another county and to 
foreclose their mortgage on their respective lands situate in both counties, the Court in 
county F has jurisdiction. Wagener v. Swygert, 30 S. C. 296, 9 S. E. 107. 

10 C C P 



130 CODE OF CIVIL PROCEDURE 

Action against trustee for an accounting for value of real estate bought with trust funds in 
her own name, is not embraced in actions under subdivision 1. Bell v. Fludd, 28 S. 0. 313, 5 
S. E. 510. 

Circuit Judge has power at chambers to hear an action for partition, while in the county 
in which land is situate. Woodward v. Elliott, 27 S. C. 868, 3 S. E. 477. 

Section (35) of this Code of Procedure prior to amendment of 1899 construed in connection 
with this. Woodward v. Elliott, 27 S. C. 368, 3 S. E. 477; Kaminsky v. Trantham, 45 S. C. 8, 
22 S. E. 746. 

This Section governs in action quare clausum fregit. Henderson v. Bennett, 58 S. C. 30, 
36 S. E. 2. 

Consent cannot give jurisdiction over lands in county other than that in which lands are situ- 
ated. Silcos V. Jones, 80 S. C. 488, 61 S. E. 948. Partition for sale of lands lying partly 
in two counties. Connor v. McCoy, 83 S. C. 173, 65 S. E. 257. Consent decree may 
be rendered anywhere. Weathersbee v Weathersbee, 82 S. C. 12, 62 S. E. 838. Consent 
need not be in writing. Ex parte Pearson, 79 S. C. 309, 60 S. E. 706. 

Action in claim and delivery for possession of animals in another county. All v. Williams, 

87 S. C. 101, 68 S. E. 1041. 

Failure of a defendant residing in one county, personally served with summons before a 
magistrate of an adjoining county in an action for claim and delivery of personal property 
within the territorial jurisdiction of such magistrate, to appear and object to the jurisdiction 
of the magistrate, waives want of jurisdiction over him, and a default judgment against him 
in such action is valid. Ex parte Towns 97 S. C. 56; 81 S. E. 278. 

Actions for injuries to real property must be tried in the county in which the subject of 
the action, or some part thereof, is situated. Pierce v. Marion County Lbr. Co., 103 S. C. 261 

88 S. E. 135. 

Under this Section, an action for injury to real estate must be tried in county where it is 
situated, subject to the power of Court to change place of trial; and an order granting a change 
of venue on ground of defendant's principal and only office was in another county was 
erroneous. Stuckey v. Alderman & Sons, 107 S. C. 426; 93 S. E. 126. 

An action for recovery of personal property must be tried in the county where the property, 
or some part thereof, is situate. Williams v. Rollins, 107 S. C. 440; 93 S. E. 1. 

An action against several defendants residing in different counties may be brought against all 
of them in the county where one resides. Darby v. Southern Ry. Co., 108 S. C. 145; 93 
S. E. 716. 

Action for specific performance must be tried in the county where land is situated, notwith- 
standing the fact that defendant is a resident of another county. 114 S. C. 122 ; 103 S. E. 477. 

Stumps are fixed to the soil, and a wrongful taking thereof is an injury to real estate. 
Stuckey v. Alderman & Sons, 107 S. C. 426; 93 S. E. 126. 

(377) § 2. Actions to Be Tried Where Cause of Action Arose. — Ac- 
tions for the following causes must be tried in the county where the cause, 
or some part thereof, arose, subject to the like power of the Court to change 
the place of trial : 

1. For the recovery of a penalty or forfeiture imposed by Statute, except 
that, when it is imposed for an offense committed on a lake, river, or other 
stream of water, situated in two or more counties, the action may be 
brought in any county bordering on such lake, river, or stream, and oppo- 
site to the place where the offense was committed. 

Jurisdiction for penalty under Act, 24 Stat. 81, may be acquired by magistrate in another 
county by appearance, pleading and participating in trial. Jenkins v. Atlantic Coast Line 
R. Co., 84 S. C. 343, 66 S. E. 409. 

Where magistrate's summons in action for recovery of personal property in his county is 
served on defendant in another county, a default judgment therein is valid if he failed to appear 
and plead to jurisdiction. Ex parte Townes, 97 S. C. 56; 81 S. E. 278. 

Action to recover penalty for receiving usurious interest on contract for lending money should 
be brought in county where loan was made and where land mortgaged to secure it was located. 
All -y. B. & A. Mort. Co., 104 S. C. 239; 88 S. E. 529. 

This Section is modified by Statute providing action against common carrier to recover 
penalty for loss of freight may be brought in any county where the cause of action for damage 
in such case may be brought. Darby v. S. Ry. Co., 108 S. C. 145; 93 S. E. 716. 

2. Against a public officer, or person specially appointed to execute his 
duties, for an act done by him in virtue of his office, or against a per- 
son who, by his command or in his aid, shall do anything touching the duties 
of such officer. 

Civ. Pro., '12, § 173 ; Civ. Pro., '02, § 145 ; 1870, XIV, § 147. 

Venue in action of qvo vjarranto, involving title to state office kept at seat of State 
Government, is in Richland County and this Section does not apply, since alleged usurpation of 
office arose where office was kept. State, by Atty. Gen'l. v. Gibbes, 109 S. C. 135 ; 95 S. E. 346. 

The words "must be tried" are imperative. Judgment in any other county is a nullitv. 
Trapier v. Waldo, 16 S. C. 276: Steele v. Exum, 22 S. C. 276; Bacot v. Lowndes, 24 S. 6. 
392; Ware v. Henderson, 25 S. C. 385; Fishburne v. Minott, 72 S. C. 572, 574, 52 S. W. 646. 

Applies to proceedings in mandamus. Lamotte v. Smith, 50 S. C. 558, 27 S. E. 933. 

Action against public officers. Fishburne v. Minott, 72 S. C. 574, 52 S. E. 646. Does not 
apply to mandamvs. State ex rel. Kirven v. Scarborough, 70 S. C. 294, 49 S. E. 860. 

Riley & Son v. Southern Railway, 81 S. C. 387, 62 S. E. 509; Silcox & Co., v Jones, 80 S. C. 
484, 488, 61 S. E. 948. 



OF SOUTH CAROLINA 131 

(378) § 3. Actions to Be Tried in County Where Defendant Resides — 
Proviso. — In all other cases the action shall be tried in the county in 
which the defendant resides at the time of the commencement of the action ; 
and if there be more than one defendant, then the action may be tried in 
any county in which one or more of the defendants to such action resides 
at the time of the commencement of the action; or if none of the parties 
shall reside in the State, the same may be tried in any county which the 
plaintiff shall designate in his complaint, subject, however, to the power 
of the Court to change the place of trial in the cases as provided by law: 
Provided, That any administrator or administratrix, heretofore or here- 
after appointed by any Probate Court of this State, may be sued in the 
county where such administration has or shall be granted; any executor 
or executrix may likewise be sued in the county where the testator's will 
is proved or admitted to probate ; and any guardian may likewise be sued 
in the county in which the letters of guardianship may be issued : Provided, 
That nothing in this Section contained shall be so construed as to pre- 
vent the hearing of any of the said actions by consent of the parties or their 
attorneys and of the guardian ad litem of any infant party to said action, 
in a county other than that in which said action may have been brought 
and may be pending, or other than that in which the property is situated. 

Civ. Pro., '12, § 174; Civ. Pro., '02, § 146; 1870, XIV, § 148; 1875, XV, 913; 1898, 
XXII, 687 ; 1905, XXIV, 848. 

The language as to trial of action in county where defendant resides is imperative, and places 
the exclusive jurisdiction there. Blakely v. Frazier, 11 S. C. 122 ; Trapier v. Waldo, 16 S. C. 
276;. Steele v. Exum, 22 S. C. 276; Bacot v. Lowndes, 24 S. C. 392; Ware v. Henderson, 25 
S. C. 385; Bell v. Fludd, 28 S. C. 313, 5 S. E. 810. If judgment be rendered in another 
county the objection to jurisdiction may be first raised in Supreme Court. Ware v. Henderson, 25 
S C 385; Bell v. Fludd, 28 S. 0. 313, 5 S. E. 810; McGrath v. Piedmont Mutual Ins. Co., 74 
S. C. 71, 54 S. E. 218. 

The action against more than one defendant may be tried in county where one resides. 
Wagener v. Swygert, 30 S. 0. 296, 9 S. E. 107. 

Where none of parties to action reside in State, the county designated in complaint is proper 
county for trial. Steele v Exum, 22 S. C. 276. 

Applies to confessions of judgment. Ex parte Ware Furniture Co., 49 S. C. 20, 27 S. E. 9. 

Actions against railroads must be tried in a county through which their road runs. Tobin v. 
Railroad Co., 47 S. C. 387, 25 S. E. 283. 

Residence depends on party's intention as evidenced by his acts and declarations. Barfleld v. 
Coker, 73 S. C. 181, 53 S. E. 170. 

If more than one defendant, action mav be tried in anv county in which one or more of them 
reside. Elms i;. Southern Power Co., 79 S. C. 502, 60 S. E. 1110; Barfleld v. Coker, supra. 

Action against partnership for receivership may be brought in any county in which any 
partner resides. Whilden v. Chapman, 80 S. C. 84 61 S. E. 249. 

Evidence as to residence. Lehardy, Etc. Co., v. Dibble, 80 S. C. 482, 61 S. E. 950. 

Right to change of venue not waived by answer to merits. Nixon v. Piedmont Mut. Ins. Co., 
74 S. 0. 438, 54 S. E. 657. Domestic insurance company cannot be sued in county in which it 
issued a policy unless it had an agent. lb. Construed. Fishburne v. Minott, 72 S. C. 575, 52 
S. E. 646. As to mandamus see Kirven v. Scarborough, 70 S. G. 294, 49 S. E. 860. 

A domestic corporation is resident in any county in the State where it maintains an agent 
and conducts its corporate business and must be sued in the county where it resides. Elms v. 
Power Co., 78 S. C. 325, 58 S. E. 809. 

Suit for foreclosure must be brought in the county in which the land situated. Silcox v. Jones, 
80 S. C. 488, 61 S. E. 948. . . . „ , „ „„ o 

Foreign insurance company can be sued anywhere. Berry v. Virginia State Ins. Co., 83 b. 
C. 13, 64 S. B. 859. . ^. ,. , . ,.^ , , 

Magistrate has jurisdiction of foreign corporation in any county m which plamtitt may elect 
to sue. Dennis v. Atlantic Coast Line R. Co., 86 S. C. 258, 68 S. E. 465. 

Court of county of residence of insolvent mutual fire insurance company in action to wind 
up affairs of company, may ascertain and adjudicate liability of members, without respect to their 
places of residence, and may enforce liens on lands of such members without respect to loca- 
tion. Wetmore v. Scalf, 85 S. C. 285, 67 S. E. 298. . 

Where Magistrate's summons in action for recovery of personal property in his county is 
served on defendant in another county, who fails to appear and plead to jurisdiction of Court, 
a judgment by default therein is valid. Ex parte Townes, 97 S. C. 56; 81 S. E. 278. 

Where mortgaged personal property was sold to another in same county and was unlawfully 
seized by a non-resident, held that mortgagor and his assignee were not merely nominal parties 
and that action for recovery of property should be broug-ht in the county where they both 
resided. Jones Bros. v. Strickland, 97 S. C. 444; 81 S. E. 792. . 

It was proper to sue a foreign corporation, owning and operating its railroad in_ this btate, 
in a county in which it maintained offices and agents for transaction of business, jointly witu 
a resident of another county, and it was error to transfer such case to county where ottier 
defendant resided. Hayes v. Ry. 98 S. C. 6; 81 S. E. 1102. 



132 CODE OF CIVIL PROCEDURE 

Magistrate has jurisdiction of members of partnership residing in another county, if properly 
served where a member living in his county is also properly served. That the resident partner, after 
making contract sued on, withdrew from the partnership, under contract with other members 
that thev will assume debt to which contract plaintiff was not a party, does not oust the 
jurisdiction. Strickland v. Strickland, 95 S. C. 492, 79 S. E. 520. 

(379) § 4. Suits Against Insurance Companies May Be Brought in 
County Where Loss Occurs. — All suits brought against any and all fire, 
life, or other insurance companies doing business in this State, may be 
brought in the county where the loss occurs : Provided, however, That 
nothing herein contained shall be so construed as to prevent the Court from 
changing the place of trial for any of the causes provided for in Sec- 
tion 382. 

Civ. Pro., '12, § 175; lf)06, XXV, 111. 

(380) § 5. Suits by Mutual Life and Fire Insurance Companies 
Against Members. — All suits instituted by mutual life insurance com- 
panies and mutual fire insurance companies heretofore formed in this State 
or hereafter formed in this State, against a member or former member of 
said companies, or any receiver of said companies against any member or 
former member of any such companies, shall be brought in the county in 
which such member resides. 

1912, XXVII, 776. 

(381) § 6. When Such Suit to Be Removed. — Wherever any suit or 
proceeding has been brought, either as an independent suit or an ancillary 
proceeding to a receivership suit, in any county other than the county 
where the member or former member resides, the Court where such proceed- 
ing is pending shall, upon motion of such member or former member sued, 
on affidavit showing that he resides in a different county, remove such 
suit or proceeding to the county where such member or former member 
resides for trial. 

1912, XXVII, 776. 

(382) § 7. Changing Place of Trial. — The Court may change the place 
of trial in the following cases : 

1. When the county designated for that purpose in the complaint is 
not the proj^er county. 

2. When there is reason to believe that an impartial trial cannot be had 
therein. 

3. When the convenience of witnesses and the ends of justice would be 
promoted by the change. 

When the place of trial is changed, all other proceedings shall be had 
in. the county to which the place of trial is changed, unless otherwise pro- 
vided by the consent of the parties, in writing, duly filed, or order of the 
Court ; and the papers shall be filed or transferred accordingly. 

Civ. Pro.; '12, § 176 ; Civ. Pro., '02, § 147 ; 1870, XIV, § 149 ; 1879, XVII, 14. 

This Section controls the preceding Section of this Title, so far as applicable. Steele v. 
Exum, 22 S. C. 276. And under it the Court has jurisdiction to order place of trial to be 
changed to proper county. lb.; Bell v. Fludd, 28 S. C. 313, 5 S. E. 810. Geiser Mfg. Co. v. 
Sanders, 26 S. C. 70 1 S. E. 159. And it is its imperative duty to do so. Blakely v. Prazier 
11 S. C. 122. But Court in wrong county has no jurisdiction to try case on merits, even when no 
demand is made for change to proper county. Ware v. Henderson, 25 S. C. 385. 

The order of Circuit Judge refusing to change place of trial on grounds stated in Subdivision 3 
is final and conclusive. Grower x>. Thompson, 6 S. C. 313. 

Subdivision 3 constitutional. Utsey v. Railroad Co., 38 S. C. 399, 17 S. E. 141. 

This Section must be construed in connection with § 34 of the Code of Procedure and 
the ten days' notice of motion there required given. Willoughby v. N. E. R. Co., 46 S. 0. 317, 



OF SOUTH CAROLINA 133 

24 S E 308. The power to grant change is discretionary. McFail v. Barnwell County, 54 
S. C. 368, 32 S. E. 417; McCown v. N. E. R. Co., 55 S. C. 384, 33 S. E. 506, and other cases 
cited under note to Code of Procediire, § 34. 

A motion for change of venue may be tried at chambers on the first and third grounds 
above, but not on second ground. Castles v. Lancaster County, 74 S. C. 512, 55 S. E. 115. 

Order may be granted at chambers, and before issue joined. Motion should be made 
without unnecessary delay. Fishburne v. Minott, 72 S. C. 575, 52 S. E. 646. 

Motion on first ground on four days' notice. Fishburne v. Minott, 72 S. C. 575, 52 S. E. 646. 

Where action is brought in another county than one where defendant resides. Court has 
jurisdiction to change place of trial, but should not dismiss action. Rafield v. Atlantic Coast 
Line R. Co., 86 S. C. 324, 68 S. E. 631. 

Court of Common Pleas has no jurisdiction of action in claim and delivery for possession 
of animals in another county, but has jurisdiction to order change of venue. Defendant's 
remedy is not dumurrer, but motion for change of venue. All v. Williams, 87 S. C. 101, 68 
S. E. 1041. 

Domestic insurance corporation cannot be sued in county in which it has issued policy unless 
it has agent in such county. This jurisdiction of Court is of subject matter, and right to 
change of venue is not waived by answer to merits. Baker v. Irvine, 62 S. 0. 283, and 
Garrett v. Herring Furniture Co., 69 S. C. 278, 48 S. E. 254, distinguished. Are these cases 
overruled? Nixon v. Piedmont Mutual Ins. Co., 74 S. C. 438, 54 S. E. 657. 

Where a domestic corporation was sued in the county where it had an agent for the 
transaction of business and held itself out to be a common carrier for hire, Court properly 
refused corporation's motion to change of venue. Fair v. Dorchester Lbr. Co., 113 S. C. 
460. 101 S. E. 845. 

Where a magistrate issues a summons against defendant in another county, who does not 
put in a special appearance and plead to the jurisdiction, he is bound by default judgment, 
he having waived same by not answering. Ex parte Towns, 97 S. C. 56; 81 S. E. 278. 

Where the defendant is sued in another county and does not put in_ special appearance 
to plead to jurisdiction, he waives his right, and judgment by default is valid. Ex parte 
Townes, 97 S. C. 56; 81 S. E. 278. 

Motion to change venue for convenience of witnesses under this Section, does not involve 
the merits, therefore, not appealable. Easterling v. Odom, 98 S. C. 174; 82 S. E. 40'7. 

Change of venue on this ground is discretionary and not appealable. Adams v. Pripp, 108 
S. C. 234; 94 S. E. 109. 

If the venue is laid in wrong county, it must be changed to proper county on motion 
regardless of whether that county is on the same circuit or not. If the venue is changed 
on account of convenience of witnesses, the cause mav also be removed to another circuit. 
Hanley v. C. L. & W. Co., 110 S. 0. 340; 96 S. E. 519. 

Even though the county where the residence of the defendants is is the proper county to try 
an action if the Court refuses the motion to change it to said county on the ground that the 
convenience of witnesses and the promotion of justice is better secured in the county where 
brought, is the proper order and not reversible. Moore v. Arthur, 113 S. C. 112, 101 S. E. 640. 



TITLE V. 

MANNER OF COMMENCING CIVIL ACTIONS. 



(383) 



1. Actions — How Commenced. — Civil actions in the Courts 
of record of this State shall be commenced by service of a summons. 
Civ. Pro., '12, § 177 ; Civ. Pro., '02, § 148 ; 1870, XIV, § 150. 

Actual service necessary to show knowledge or notice of action. Norris v. Ins. Co., 55 S. C. 
450, 33 S. E. 566; cited in Tillinghast v. Boston Lumber Co., 39 S. C. 484, 18 S. E. 120. 

Member of Congress not exempt from service of summons in civil action. Worth v. Norton, 
56 S. C. 56, 33 S. E. 792. The summons is the process by which jurisdiction of defendant's 
person is acquired. Wren v. Johnson, 62 S. 0. 533, 40 S. E. 937; Little v. Christie, 69 
S. C. 57, 48 S. E. 89. 

Presumption of service to sustain jurisdiction. Kaylor v. Hiller, 77 S. C. 397, 58 S. E. 2. 
Does not apply to Magistrate's Court. Hasten Furniture Co. v. Southern R. Co., 82 S. C. 
238, 64 S. E. 223. 

Power to grant temporary injunction without notice. Jordan v. Wilson, 69 S. 0. 256, 
48 S. E. 224. 

The Supreme Court has no original jurisdiction to determine the title to an office on a 
petition and rule to show cause in less than twenty days, where the one in posession of the 
office demurs to the jurisdiction of the Court on the ground that the proper proceeding is 
by action. State v. Tollison, 95 S. 0. 78 S. E. 521. 

Signature and seal of the Clerk of Court not necessary for validity of summons. Southern 
Cotton Oil Co., V. Hewlett, 107 S. C. 532; 93 S. E. 195. 

Taking depositions under the provisions of the Civil Code in a special proceeding is an 
action within the purview of this Section. In re Percival's Estate, 108 S. 0. 39; 93 S. E. 243. 

(384) § 2. Summons — Requisites of. — The summons shall be sub- 
scribed by the plaintiff or his attorney, and directed to the defendant, and 
shall require him to answer the complaint, and serve a copy of his answer 
on the person whose name is subscribed to the summons, at a place within 
the State, to be therein specified, in which there is a postoffice, within 
twenty days after the service of the summons, exclusive of the day of 
service. 

Civ. Pro., '12, § 178 ; Civ. Pro., '02, § 149 ; 1870, XIV, § 151. 



134 CODE OF CIVIL PROCEDURE 

Form of summons. Bell v. Pruitt, 51 S. C. 344, 29 S. E. 5. 

The date is not one of the requisites of a summons. Smith v. Walker, 6 S. C. 169. Butler 
Bros. V. Welch, 76 S. C. 131, 56 S. E. 668. 

In action against a corporation, judgment by default will not be set aside because the 
summons, properly entitled, was served upon the president and general agent, and notified 
"judgment will be taken against you" upon failure to answer. Clark v. Porcelain Co., 8 S. C. 45. 
Sufficiency of summons cannot be considered on appeal in the absence of exceptions thereto. 
Beattie v. Latimer, 42 S. C. 313, 20 S. E. 53. 

The Supreme Court has no original jurisdiction to determine the title to an office on a 
petition and rule to show cause in less than twenty days where the one in possession of the 
office demurs to the jurisdiction of the Court on the ground that the proper proceeding is 
by action. State d. Tollison, 95 S. C. 58: 78 S. E. 521. 

The time for answering is fixed by statute and can only be extended by consent or order obtained 
under rule 19 and is not extended by pendency of motion to make the complaint more definite 
and_ certain. Johnson v. Finger,, 102 S. C. 354; 86 S. E. 673. 

Signature and seal of Clerk of Court not necessary to validate the summons. Southern 
Cotton Oil Co. V. Hewlett, 107 S. C. 532, 93 S. E. 195. 

(385) § 3. Notice to Be Inserted in Summons, — The plaintiff shall 
also insert in the summons a notice, in substance : That if the defendant 
shall fail to answer the complaint within twenty days after the service 
of the summons, the plaintiff will apply to the Court for the relief de- 
manded in the complaint. 

Civ. Pro., '12, § 179; Giv. Pro., '02, § 150; 1870, XIV, § 152. 

(386) § 4. Complaint Need Not Be Served With Summons. — A copy 
of the complaint need not be served with the summons. In such case, the 
summons must state where the complaint is or will be filed, and if the 
defendant, within twenty days thereafter, causes notice of appearance to 
be given, and, in person or by attorney, demands, and in writing, a copy of 
the complaint, specifying the place within the State where it may be 
served, a copy thereof must, within twenty days thereafter, be served 
accordingly; and, after such service, the defendant has twenty days to 
answer ; but only one copy need be served on the same attorney. 

Civ. Pro., '12, § 180; Civ. Pro., '02, § 151; 1870, XIV, § 153. 

What constitutes filing. Dunton v. Harper, 64 S. C. 343, 42 S. E. 154. 

Where summons has been properly served without complaint, if it is deposited in the post- 
office on the twenty-first day after demand for service when the twentieth day falls on Sunday, 
is good. Royal Ex. Assurance of England v. Bennettsville & Cheraw R. R. Co., 95 S. C. 375, 
79 S. E. 104. 

Defendants are bound to demand a copy of the complaint within twenty days after its filing to 
their knowledge, and to answer within twenty days after service of a copy of the complaint; 
and where a defendant appeared generally in an action, he is bound to demand a copy of the 
complaint within the twenty days, and to answer it within twenty days. 

Where plaintiffs, after voluntary appearance of defendant, elect to pursue publication of 
summons and called upon defendant to answer within twenty days after publication, waived 
their right to insist on answer within twenty days from the time of appearance, although 
appearance by defendant subjected him to jurisdiction of Court and made it requisite that he answer 
within twenty days. Yet, where plaintiffs procured from the Clerk an order of publication 
for service of a non-resident, the defendants are held to be in time where they filed a 
petition for removal before the service by publication became effective, plaintiffs having waived their 
rights after defendants' appearance when thev thereafter petitioned for order of publication. 
Stephens v. Ringling, 102 S. C. 333; 86 S. E. 683. 

(387) § 5. Defendant Unreasonably Defending. — In the case of a 
defendant against whom no personal claim is made, the plaintiff may 
deliver to such defendant, with the summons, a notice subscribed by the 
plaintiff or his attorney, setting forth the general object of the action, a 
brief description of the property affected by it, if it affects specific real 
or personal property, and that no personal claim is made against such 
defendant, in which case no copy of the complaint need be served on such 
defendant, unless, within the time for answering, he shall, in writing, 
demand the same. If a defendant, on whom such notice is served, unrea- 
sonably defend the action, he shall pay costs to the plaintiff. 

Civ. Pro., '12, § 181; Civ. Pro., '02, § 1.52; 1870, XIV, § 154. 

Defendant answering after such notice must be regarded as a volunteer. Wylie v. Lyle, 
7 S. C. 206. 



OF SOUTH CAROLINA 135 

(388) § 6. Notice of Lis Pendens, — In an action affecting the title to 
real property, the plaintiff, at the time of filing the complaint, or at any- 
time afterwards, or whenever a warrant of attachment, under Chapter 4 
of Title 7, Part 2, of this Code of Procedure, shall be issued, or at any 
time afterwards, the plaintiff, or a defendant, when he sets up an affirm- 
ative cause of action in his answer, and demands substantive relief, at 
the time of filing his answer, or at any time afterwards, if the same be 
intended to affect real estate, may file with the Clerk of each county in 
which the property is situated, a notice of the pendency of the action, 
containing the names of the parties, the object of the action, and the 
description of the property in that county affected thereby; and if the 
action be for the foreclosure of a mortgage, such notice must be filed 
twenty days before judgment, and must contain the date of the mortgage, 
the parties thereto, and the time and place of recording the same. From 
the time of filing only, shall the pendency of the action be constructive 
notice to a purchaser or encumbrancer of the property affected thereby; 
and every person whose conveyance or encumbrance is subsequently exe- 
cuted or subsequently recorded shall be deemed a subsequent purchaser 
or encumbrancer, and shall be bound by all proceedings taken after the 
filing of such notice to the same extent as if he were made a party to the 
action. For the purposes of this Section, an action shall be deemed to be 
pending from the time of filing such notice : Provided, however, That such 
notice shall be of no avail, unless it shall be followed by the first publica- 
tion of the summons, or an order therefor, or by the personal service 
thereof, on a defendant within sixty days after such filing. And the 
Court in which the said action was commenced may, in its discretion, at 
any time after the action shall be settled, discontinued, or abated, as is 
provided in Section 364, on application of any person aggrieved, and on 
good cause shown, and on such notice as shall be directed or approved by 
the Court, order the notice authorized by this Section to be cancelled of 
record by the Clerk of any county in whose office the same may have 
been filed or recorded; and such cancellation shall be made by an endorse- 
ment to that effect on the margin of the record, which shall refer to the 
order, and for which the Clerk shall be entitled to a fee of twenty-five 
cents. 

Civ. Pro., '12, § 182; Civ. Pro., '02, § 153; 1S70, XIV, § 155. 

Sale of land under execution levied, before lis pendens was iiled in action to foreclose mortgage 
on it, gave good title to purchaser ; and he had right as a proper party, by petition in the 
action, to contest the mortgage. Ex parte Mobley, 19 S. C. 337. 

Filing lis pendens has no effect except in the cases here specifically provided for. Armstrong v. 
Carwile, 56 S. C. 463, 35 S. E. 196. 

Purchaser whose deed is recorded before filing of lis pendens is not affected thereby. Green- 
wood, etc., Ass'n v. Childs, 67 S. C. 251, 45 S. E. 167. Lis pendens binds subsequent 
tenant and the crop standing at the time of sale belongs to purchaser under foreclosure. Tittle v. 
Kennedv, 71 S. C. 1, 50 S. E. 544, 4 Am. & Eng. Ann. Cas. 68. 

See Williams v. Jones, 74 S. C. 258, 54 S. E. 558. 

One who is neither a subsequent purchaser nor encumbrancer is not protected by failure 
to file notice of lis pendens. Vance v. Weslev, 85 Fed. 157. See, also, Wesley v. Tindal, 81 
Fed. 612, 614. 

Judgment is notice to one acquiring possession after entry of judgment, although no notice 
of lis pendens was filed. Wesley v. Tindal, 81 Fed. 612. 

Where wife of mortgagor, having actual notice of facts as well as constructive notice of the 
mortgage, by due filing of lis pendens, took deed to the land from a prior owner, on _ the day 
of foreclosure sale to plaintiffs ; she was bv the terms of such action bound by the judgment 
of foreclosure. McNair v. Ale.x, 105 S. C. 445; 90 S. E. 23. 

(389) § 7. Summons— By Whom Served— Fees for Service.— The 

summons may be served by the Sheriff of the county where the defendant 



136 CODE OF CIVIL PROCEDURE 

may be found, or by any other person not a party to the action. The ser- 
vice shall be made, and the summons returned, with proof of the service, 
to the person whose name is subscribed thereto, with all reasonable dili- 
gence. The person subscribing the summons may, at his option, by an 
endorsement on the summons, fix a time for the service thereof, and the 
service shall then be made accordingly : Provided, That no costs shall be 
taxed to any person for the service of any summons, complaint, answer, 
demurrer, subpoena, or other legal process issuing out of the Courts of 
Common Pleas and Courts of Probate, not made by the Sheriff of the 
County where such process is served, or his legally constituted deputies. 
Civ. Pro., '12, § 1S3 ; Civ Pro., '02, § 154 ; 1S70, XIV, § 156 ; 1874, XV, 640. 

Smitli V. Walker, 6 S. C. 169; Cureton v. Bargan, 12 S. 0. 122. Gives jurisdiction of 
non-resident served witliin the State, though, he has no property here. Ford v. Calhoun, 53 
S. C. 106, 30 S. E. 831. 

When nonresident witness or party temporarily in State exempt from service. Breon v. 
Miller Lumber Co., 83 S. C. 221, 65 S. E. 214, 137 Am. St. Rep. 803, 24 L. R. A., N. S., 276n. 

Service of summons may be made by any person not a party to the action. Easterling v. 
Odom, 98 S. C. 171; 82 S. E. 407. 

(390) § 8. Summons — How Served. — The summons shall be served by 
delivering a copy thereof as follows : 
1870, XIV, § 157. 

1. If the suit be against a corporation, to the President or other head 
of the corporation, Secretary, Cashier, Treasurer, a Director or agent 
thereof. Service upon any person occupying an office or room in any 
railway station, and attending to and transacting therein any business of 
any railroad, shall be deemed service upon the corporation under the 
charter of which such railroad is authorized by law ; and such person shall 
be deemed the agent of said corporation, notwithstanding he may claim 
to be the agent of any other person or corporation claiming to operate 
said railroad by virtue of any lease, contract or agreement. 

Foreign corporation may appear solely to test service upon a party "as resident agent 
thereof" and have service set aside. Hester v. Rasin, Fert. Co., 33 S. 0. 609, 12 S. B. 563. It 
may v^aive service and submit itself to jurisdiction of Court by appearing generally and answering 
on the merits. Chafee v. Postal Tel. Co., 35 S. C. 372, 14 S. E. 764. Service may be 
made on traveling salesman of foreign corporation temporarily in the State as its agent. Abbeville, 
etc., Co. i\ Western Electrical Supply Co., 61 S. C. 361, 39 S. E. 559. Prior to amendment 
service could only be made on a resident agent, and might be made on such agent without 
attachment. Pollock v. B. & L. Ass'n., 48 S. C. 65, 25 S. E. 977. In order that jurisdiction 
be acquired the corporation must have either property or agent in the State. Tillinghast v. 
Lumber Co., 38 S. C. 319, 17 S. E. 31, 39 S. C. 484, 18 S. E. 120. But service cannot be 
made on an officer who is the plaintiff, or attorney in fact for the plaintiff, in the action. George v. 
American Ginning Co., 46 S. C. 1, 24 S. E. 41, 32 L. R. A. 764. The appointment of a 
foreign receiver for the coi'poration cannot affect the service or the agent of the corporation here. 
Pollock V. B. & L. Ass'n., supra. 

Service on domestic corporation having no agent in the State. Bernhardt v. Brown, 118 N. 
C. 700, 119 N. C. 506, 36 L. R. A. 402. 

Provision for service on foreign corporation does not make statute of limitations run in 
its favor. Green v. Insurance Co., 139 N. C. 309, 1 L. R. A., N. S., 623. 

Service on nonresident officer of domestic corporation. Breon v. Miller Lumber Co., 83 S. C. 
227, 61 S. E. 214, 137 Am. St. Rep. 803, 24 L. R. A., N. S., 276n. 

Service on foreign corporation. Emmanuel •;;. Ferris, 63 S. C. 104, 41 S. E. 20; Best v. 
Seaboard Air Line Ry., 72 S. C. 480, 52 S. E. 223. 

No second motion can be made to set aside summons where first has been overruled. Abbeville 
Electric Light and Power Co., v. Western Electric Supply Co., 66 S. C. 843, 44 S. E. 952. 

Service of motion on attornev action for foreign corporation is valid. Sellers v. Home 
Fertilizer Chemical Works, 76 S. C. 343, 56 S. E. 978. 

Service on timekeeper of foreign corporation good. Jenkins v. Penu Bridge Co., 73 S. C. 
526, 53 S. E. 991. 

Proof of service. Middleton v. Stokes, 71 S. C. 17, 50 S. E. 539. 

Objection that statutes are inconsistent with Federal Constitution not raised until after 
appeal taken comes too late. Western Elect. Supply Co. v. Abbeville, etc.. Power Co., 197 U. S. 299, 
303, 49 L. Ed. 765. 

Such service can be made in respect to a foreign corporation only when 
it has propert}^ within the State, or the cause of action arose therein, or 



OF SOUTH CAROLINA 137 

where such service shall be made in this State personally upon the Presi- 
dent, Cashier, Treasurer, Attorney or Secretary, or any agent thereof. 
1883, XVIII, 437; 1887, XIX, 835; 1899, XXIII, 42. 

Under this Section service on foreign corporation only where made in State personally on any agent 
thereof is good where served on a selling agent who is another foreign corporation, if 
served on the Vice President of such corporation personally, that being personal service on the 
agent. Calhoun Mills v. B. D. Collieries, 112 S. C. 332; 99 S. E. 821. 

A broker selling corn for a no;iresident corporation on commission paid by the corporation 
is such an agent as is competent to serve summons on, within the meaning of this Section. 

Where a nonresident corporation enters a State and does business therein, it impliedly 
assents to the terms imposed by the State on foreign corporations doing business therein. H. L. 
and L. F. McSwain v. Adams Grain & Provision Co., 93 S. C. 103; 96 S. E. 117. 

2. If against a minor under the age of fourteen years, to such minor 
personally, and also to his father, mother, or guardian; of, if there be 
none within the State, then to any person having the care and control of 
such minor, or with whom he shall reside, or in whose service he shall be 
employed. 

1870, XIV, § 157. 

These requirements are positive, and the jurisdiction of an infant can only be obtained by 
pursuing this mode of service prescribed. Finley v. Robertson 17 S. 0. 435 ; Genobles v. West, 
23 S. C. 154; Riker v. Vaughan, 23 S. C. 187; Whitesides v. Barber, 24 S. C. 373; Tederall v. 
Bouknight, 25 S. C. 275; Faust v. Faust, 31 S. C. 576, 10 S. E. 262. Service, without 
appointment of guardian ad litem, held sufficient to give jurisdiction of infant. Robertson v. 
'Blair, 56 S. C. 96, 34 S. E. 11. Sufficiency of recitals in record as to service on infant. Allen v. 
Allen, 48 S. C. 566, 26 S. E. 786. Where parent is a party, and thus has knowledge of the 
action, service need not be made on him as well as his child under fourteen, in order to 
give jurisdiction over the latter. Kennedy v. Williams, 59 S. C. 378, 38 S. E. 8; Kaylor v. 
Hiller, 77 S. 0. 393, 58 S. E. 2. As to service on infants, see, also, Barrett v. Moise, 61 
S. C. 569, 39 S. E. 755. Guardian as plaintiff in action having adverse interests to those 
of his ward cannot accept service for the latter as a defendant. Morgan v. Morgan, 54 S. C. 
323, 23 S. E. 64. 

Where jurisdiction defect does not appear on face of the record service cannot be brought in 
question collaterally. Kaylor v. Hiller, 77 S. C. 398, 58 S. E. 2. 

Minor under fourteen must be served personally. Hutto v. Black, 88 S. C. 1. 

Presumption of proper service after lapse of twenty years where record of Probate Court 
silent. Clark v. Neves, 76 S. C. 484, 57 S. E. 614, 12 L. R. A., N. S., 298n. 

3. If against a person judicially declared to be of unsound mind, or 
incapable of conducting his own affairs in consequence of habitual drunk- 
enness, and for w^hom a committee or guardian has been appointed, to 
such committee or guardian, and to the defendant personally. 

1870, XIV, § 157. 

4. In all other cases to the defendant personally, or to any person of 
discretion residing at the residence or employed at the place of business 
of said defendant. 

Civ. Pro., '12, § 184 ; Civ. Pro., '02, § 155 ; 1873, XV, 497 ; 1882, XVIII, 256 ; 1892, 
XXI, 104. 

This Subdivision 4 applies only to service within the State. Armstrong v. Brant, 44 S. C. 
177, 21 S. E. 634. 

Service of summons and complaint on minor over fourteen or adult is good if copies be 
left with some one of discretion at his home or place of business. Hutto v. Black, 88 S. C.l. 

(391) § 9. Service of Process of Summons on Domestic Corporation 
by Publication. — In any action or proceeding in this State where the 
defendant is a corporation created by or organized under the laws of this 
State and no ofiicer or agent thereof upon whom service of process can 
be made can, after due diligence, be found in this State, and this is made 
to appear by affidavit, then process may be served upon said corporation 
by publication provided in Section 10 of this Chapter. 

1920, XXXI, 797. 

(392) § 10. Publication of Summons. — Wliere the person on whom the 
service of the summons is to be made cannot, after due diligence, be found 
within the State, and that fact appears by affidavit to the satisfaction 



138 CODE OF CIVIL PEOCEDURE 

of the Court, or a Judge thereof, the Clerk of the Court of Common Pleas, 
Master, or the Probate Judge of the county where the trial is to be had, and 
it in like manner appears that a cause of action exists against the defendant 
in respect to whom the service is to be made, or that he is a proper party to 
an action relating to real property in this State, such Court, Judge, Clerk, 
Master, or Judge of Probate, may grant an order that the service be made by 
the publication of the summons in either of the following cases: 1. Where 
the defendant is a foreign corporation, has property within the State or 
the cause of action arose therein. 2. "Where the defendant, being a resi- 
dent of this State, has departed therefrom, with intent to defraud his 
creditors, or to avoid the service of a summons, or keeps himself con- 
cealed therein with like intent. 3. Where he is not a resident of this 
State, but has property therein, and the Court has jurisdiction of the sub- 
ject of the action. 4-. Where the subject of the action is real or personal 
property in this State, and the defendant has or claims a lien or interest, 
actual or contingent, therein, or the relief demanded consists wholly or 
partly in excluding the defendant from any interest or lien therein. The 
order shall direct the publication to be made in one newspaper, to be 
designated by the officer before whom the application is made, as most 
likely to give notice to the person to be served, and for such length of 
time as may be deemed reasonable, not less than once a week for three 
weeks. In case of publication, the Court, Judge, Clerk, Master, or Judge 
of Probate shall also direct a copy of the summons to be forthwith depos- 
ited in the postoffice, directed to the person to be served at his place of 
residence, unless it appears that such residence is neither known to the 
party making the application, nor can, with reasonable diligence, be 
ascertained by him. When publication is ordered, personal service of the 
summons out of the State is equivalent to publication and deposit in the 
postoffice. And such personal service so made and likewise in Magis- 
trates' Courts shall be complete and final on the day of the date of the 
personal service of the summons as fully as if such personal service had 
been made under the provisions of Section 8 of this Chapter. In case 
of minors, in like cases, a similar order shall be made and like pro- 
ceedings be had as in case of adults. Personal service of the sum- 
mons out of the State shall be equivalent to publication and deposit 
in the postoffice, and when such service is had, no order for publication 
or deposit in the postoffice shall be necessary. In case of persons impris- 
oned in the penitentiary, or in the jail of any county in this State, and in 
case of lunatics confined in the State Hospital for the Insane, or in any 
other place of confinement, personal service of the summons and com- 
plaint, or other process affecting the rights of such persons, shall be made 
by the Sheriff of the county in which such persons shall be imprisoned 
or confined, with like proof of service as required in case of minors, and 
thereupon the Judge of the Court, or Magistrate before whom the action 
is to be tried, shall appoint some attorney or other competent person to 
act as guardian ad litem for any person so imprisoned or confined, who 
shall receive out of the property of such persons a reasonable compensa- 
tion for such service rendered in their behalf ; and the case shall proceed 
as in other cases of persons not under disabilities : Provided, That in cases 



OF SOUTH CAROLINA 139 

of persons imprisoned or confined, as herein stated, outside of this State, 
service by publication shall be deemed sufficient. The defendant against 
whom publication is ordered, or his representatives, on application and 
sufficient cause shown at any time before judgment, must be allowed to 
defend the action, and the defendant against whom publication is 
ordered, or his representatives, may, in like manner, upon good cause 
shown, be allowed to defend after judgment, or at any time within one 
year after notice thereof, and within seven years after its rendition, on 
such terms as may be just ; and if the defense be successful, and the judg- 
ment, or any part thereof, has been collected or otherwise enforced, such 
restitution may thereupon be compelled as the Court directs ; but the 
title to property sold under such judgment to a purchaser in good faith 
shall not be thereby affected. And in all cases where publication is made, 
the complaint must be first filed and the summons, as published, must 
state the time and place of said filing. In actions affecting the title to 
real property, or for the partition of real estate, or for the foreclosure 
of mortgage on real estate, if any party or parties having any interest or 
lien upon such mortgaged premises are unknown to the plaintiff, and the 
residence of such party or parties cannot, with reasonable diligence, be 
ascertained by him, and such facts shall be made to appear by affidavit 
to the Court, or Judge, Clerk of the Court, Master, or Judge of Probate 
when the trial is to be had, such Court, Judge, Clerk, Master, or Judge of 
Probate shall grant an order that the summons be served on such unknown 
party or parties by publishing the same for three weeks, once a week, 
in a newspaper printed in the county where the premises are situated, 
which publication shall be equivalent to a personal service on such un- 
known party or parties. Magistrates may grant order of publication of 
summons against the absent parties. The Magistrates of this State are 
hereby invested, in actions brought in their Courts, within their jurisdic- 
tion, to grant orders of publication against absent defendants, in the 
same manner and to the same extent as authorized in this Section to be 
done by the Circuit Court or a Judge thereof, or the Clerks of Common 
Pleas, the Master, or the Probate Judge ; and the service of any summons 
so made upon any absent defendant, or defendants, shall have the same 
binding force and effect as such service would have in the Court of Com- 
mon Pleas : Provided, That the time for publication of summons in Magis- 
trate 's Courts shall be once a week for not less than three weeks. 

Civ. Pro., '12, § 185; Civ. Pro., '02, § 156; 1870, XIV, § 158; 1876, XVI, 190; 1898, 
XXII, 698 ; 1901, XXIII, 635 ; 1904, XXIV, 379 ; 1913, XXVIII, 40 ; 1914, XXVIII, 
534. 

Prior to amendment inserting the last subdivision Magistrates had no authority to grant 
order of publication. Ferguson v. Gilbert, 17 S. C. 26; Note, p. 29. 

In the absence of fraud or collusion, if the affidavit satisfies the officer granting order of 
publication, his order is final. Yates v. Gridley, 16 S. C. 496; Bank v. Stelling, 31 S. C. 360, 
9 S. E. 1028. 

The question of good faith cannot be made on mere motion to vacate judgment ; can only be 
made under formal proceeding. Yates v. Gridlej', 16 S. C. 496. 

Where an agreement between member and foreign life insurance association provided that 
death claims should be made and paid at home office, the claims of beneficiaries thereunder 
was not a cause of action that arose in this State, and the foreign corporation having no 
property here it could not be made a party to action here on such claim. Rodgers v. Mutual 
Association, 17 S. C. 406. Cause of action arises at place of performance presu'^iably the 
place of making. Tillinghast v. Boston Lumber Co., 39 S. C. 484, 18 S. E. 120. But when the subject 
matter was within the jurisdiction of the Court, and the contract made as to it while the 
defendants were residents of this State, they can be made parties, as nonresidents, by publication. 



140 CODE OF CIVIL PROCEDURE 

Shumate v. Harbin, 35 S. C. 521, 15 S. E. 270. So, where all parties in. interest are non- 
residents, they can be so made parties in action to set aside assignment as to real property 
situate here. Bank v. Stelling, 31 S. C. 360, 10 S. E. 1028. 

An order for service by publication is absolutely required, even vyhere there is personal 
service or its equivalent out of the State. Riker v. Vaughan, 23 S. C. 187. _ But when publication 
has been ordered, personal service out of the State is equivalent to publication and deposit in 
post-oftice. Darby v. Shannon, 19 S. C. 526. Only defendant can take advantage of alleged 
insiifficiency in service summons. 76. But service lay leaving copies at the place of residence 
is not equivalent to personal service. Armstrong v. Brant, 44 S. C. 177, 21 S. E. 634. The 
affidavit mav refer to the complaint and the statement of the venue is unnecessary. Olemson 
College r. Pickens, 42 S. C. 511, 20 S. E. 401. The order of publication may be neither 
sealed or dated. Ih. Where the defendant is furnished with a copy of the complaiiit, _ it is 
unnecessary in publishing the summons to state where the complaint is filed. lb. Jurisdiction to 
render a personal judgment, as to declare a marriage void, cannot be acquired by publication 
of summons. Pexjper v. Shearer, 48 S. C. 492, 26 S. E. 797. A successful defense after 
judgment, held not to affect the title of purchaser. Hunter v. Ruff, 47 S. C. 525, 25 S. E. 
65. Appearance cures defect in service. Townes v. City Cotincil, 46 S. C. 15. 23 S. E. 
984; Ex parte Keeler, 45 S. C. 537, 23 S. E. 865; Martin v. Bowie, 37 S. C. 102, 15 S. E. 740. 

Proceedings as to publication of summons to nonresident before attachment null and void. 
Little V. Christie, 69 S. C. 61, 48 S. E. 89. 

Irregularities in issuing order of publication waived by general appearance. Savannah 
Grocery Company v. Rizer, 70 S. C. 508, 50 S. B. 199. 

Service of summons out of State without order of publication and attachment is void. Wren v. 
Johnson, 62 S. C. 533, 40 S. E. 937; Emanuel v. Ferris, 63 S. C. 104, 41 S. E. 20. 

Affidavit and undertaking in attachment. Watson v. Paschall, 73 S. 0. 421, 53 S. E. 646. 

Attachment of property of nonresident essential to jurisdiction. Grocery Co. v. Elevator Co., 
72 S. C. 450: 52 S. E. 191, 110 Am. St. Rep. 627, 5 Am. & Eng. Ann. Cas. 261, 2 L. 
R. A., N. S., 79n. 

Only party can move to set aside service. Howell v. A. C. L. R. R. Co., 79 S. C. 493, 
60 S. E. 1114. 

Personal service out of State, after order for publication. Geo. Norris Co., v. Levins Sons, 81 
S. C. 46, 61 S. C. 1103. 

Marking "filed" not essential to filing paper. Watson v. Paschall, supra. 

See, also, Best v. Seaboard Air Line Railway, 72 S. C. 481, 52 S. E.; 223 Greenwood Loan 
and Guarantee Association v. Williams, 71 S. "C. 424, 51 S. E. 272. 

Service is not complete until expiration of full six weeks. Tenny v. American Pipe Mfg. Co., 
96 Fed. 919, 920. 

Is a summons necessary in Magistrate's Court? Hasten Furniture Co. v. Southern Railway, 
82 S. C. 238, 64 S. E. 223. 

Purchasers at judicial sale, buying in good faith in a partition suit, are protected so 
far as any collateral attack which may be made thereon, unless it affirmatively appears on the 
face of the record that the Court had no jurisdiction of the subject of the action and of the 
parties, since such purchaser has no notice of deed affected by irregularities or errors in 
the record for which the judgment may be vacated on direct attack or reversed on appeal, 
which facts are not disclosed by the record. Gladden v. Chapman, 106 S. C. 486; 91 S. E. 
796. 

Under this Section, as amended by 28 Stat. 534, as to service by publication, when a 
nonresident defendant claims an interest in real property, the Court has jurisdiction to compel 
specific performance of a contract of the nonresident to convey lands within the State and 
within the jurisdiction of the Court. Bush v. Aldrich, 110 S. C. 491; 96 S. E. 922. 

(393) § 11. Proceedings When Part Only of Defendants Served— 
Partners. — Where the action is against two or more defendants, and the 
summons is served on one or more of them, but not on all of them, the 
plaintiff may proceed as follows : 

1. If the action be against defendants jointly indebted upon contract, 
he may proceed against the defendant served, unless the Court otherwise 
direct; and, if he recover judgment, it may be entered against all the 
defendants thus jointly indebted, so far only as that it may be enforced 
against the joint property of all and the separate property of the defend- 
ants served; and, if they are subject to arrest, against the persons of the 
defendants served; or. 

Card V. Hine, 39 Fed. 818. 

This does not apply where all the parties were served. Dulany r. Elford, 22 S. C. 304. 
Applies to partnership contracts, where only one of the partners has been served with the 
summons. Whitfield v. Hovey, 30 S. C. 117, 8 S. E. 840; Pope Mfg. Co. v. Welch, 55 S. 
528, 33 S. E. 789. This does not authorize a general judgment against the one not served, Roberts v. 
Pawley, 50 S. 0. 491, 27 S. E. 913. 

It is within discretion of Court to require service of all defendants where they reside within 
the jurisdiction. Allnut v. Lancaster, 76 Fed. 131. 

2. If the action be against the defendants severally liable, he may pro- 
ceed against the defendants served, in the same manner as if they were 
the only defendants. 



OF SOUTH CAROLINA 141 

3. If all tlie defendants have been served, judgment may be taken 
against any or either of them severally, where the plaintiff would be 
entitled to judgment against such defendant or defendants, if the action 
had been against them, or any of them, alone. 

Dominion Bank v. Olympia Cotton Mills, 128 Fed. 181. 

Discontinnance as to certain stockholders. Sadler v. Nicholson, 49 S. C. 7, 26 S. E. 893. 

Applies in Magistrate's Court. Pierce v. Varn, Byrd & Co., 76 S. C. 361, 57 S. E. 184. 

4. If the name of one or more partners shall, for any cause, have been 
omitted in any action in which judgment shall have passed against the 
defendants named in the summons, and such omission shall not have been 
pleaded in such action, the plaintiff, in case of judgment therein shall 
remain unsatisfied, may, by action, recover of such partner separately, 
upon proving his joint liability, notwithstanding he may not have been 
named in the original action; but the plaintiff shall have satisfaction of 
only one judgment rendered for the same cause of action. 

Civ. Pro., '12, § 186 ; Civ. Pro., '02, § 157 ; 1870, XIV, § 159. 

(394) § 12. When Service By Publication Complete. — In the cases 
mentioned in Section 10 this Chapter, the service of summons shall be 
deemed complete at the expiration of the time prescribed by the order for 
publication, except in the case of personal service, in which case such 
service shall be complete and final on the day on which it is made, as 
provided in said Section 10 of this Chapter. 

Civ. Pre, '12, § 187 ; Civ. Pro., '02, § 158 ; 1870, XIV, § 160 ; 1901, XXIII, 635. 

Tennev v. American Pipe Mfg. Co., 96 Fed. 919; Little v. Christie, 69 S. C. 57, 59, 48 
S. E. 89. 

(395) § 13. Proof of Service. — Proof of the service of the summons, 
and of the complaint or notice, if any, accompanying the same must be as 
follows : 

1. If served by the Sheriff, his certificate thereof ; or 

2. If by any other person, his affidavit thereof; or, 

3. In case of publication, the affidavit of the printer, or his foreman, or 
principal clerk, showing the same, and an affidavit of a deposit of a copy 
of the summons in the postoffice, as required by law, if the same shall 
have been deposited. 

When the service is made out of the State after the order for publica- 
tion, the proof of such service may be made, if within the United States, 
by affidavit before any person in this State authorized to take an affidavit, 
or before a Commissioner of Deeds for this State, or a Notary Public, who 
shall use his official seal, or before a Clerk of a Court of record, who shall 
certify the same by his official seal ; or, if made without the limits of the 
United States, before a Consul or Vice Consul or Consular Agent of the 
United States, who shall use in his certificate his official seal. 

4. The written admission of the defendant. 

In case of service otherwise than by publication, the certificate, affi- 
davit, or admission must state the time and place of the service. 

Civ. Pro., '12, § 188; Civ. Pro., '02, § 159; 1870, XIV, § 161; 1884, XVIII, 745; 
1891, XX, 1041. 



142 CODE OF CIVIL PROCEDURE 

Sufficiency of certificate: Sheriff's deputy may act in serving papers. Prince v. Dickson, 
39 S. C. 477, 18 S. E. 33. 

Sheriff's return of service may be rebutted by entry in his book and testimony of his 
deputy and party to be served. Genobles v. West, 23 S. C. 154. But under his return of 
service on defendant "at her residence," it will be presumed that such service was in the 
county of the venue. Lyles v. Haskell, 35 S. C. 391, 14 S. E. 829. 

Service upon proper party by misnomer is binding. Waldrop v. Leonard, 22 S. C. 118 ; 
Genobles v. West. 23 S. C. 154. 

Proof of service by one other than Sheriff must be by affidavit. State v. Cohen, 13 S. 0. 198. 
It is not required that such certificate of Clerk of Court as to authority of Notary Public should 
be appended to the affidavit at the time it is taken, but it may be furnished to the Court 
afterwards. Bank v. Stelling, 31 S. C. 360, 9 S. E. 1028. 

Written admission of the defendant is service. Benson v. Carrier, 28 S. C. 119, 5 S. E. 272. 

Acceptance of service by an attorney having no authority so to do does not constitute a 
legal service. Reed v. Reed, 19 S. C. 548. 

Nor can infant bind himself by acceptance of service. Finley v. Robertson, 17 S. C. 435; 
Riker v. Vaughan, 23 S. C. 187; Genobles v. West, 23 S. C. 154; Whitesides v. Barber, 24 
S. C. 373. Yet. such acceptance, even of an irregular summons, by an adult without objection 
to proceedings thereunder estop him from denying jurisdiction. Finley v. Robertson, 17 S. C. 
435. Affidavit sufficient made before vice consul prior to the amendments of 1884. Marine Co. v. 
Parsons, 49 S. C. 136, 26 S. E. 956. 

Proof of service on foreign corporation. Tillinghast v. Boston Lumber Co., 39 S. C. 484, 18 
S. E. 120. 

Jurisdiction of a living person once acquired by service of the summons attaches always, 
although he may be bevond the Court's jurisdiction. People's B. & L. Ass'n. v Mayfield, 42 
S. C. 424, 20 S. E. 290. 

Service on infant sustained though proof does not show place of service. Middleton v. 
Stokes, 71 S. C. 20, 50 S. E. 539. 

(396) § 14. When Jurisdiction of Action Acquired. — From the time 
of the service of the summons in a civil action, or the allowance of a pro- 
visional remedy, the Court is deemed to have acquired jurisdiction, and to 
have control of all the subsequent proceedings. A voluntary appearance 
of a defendant is equivalent to personal service of the summons upon him. 

Civ. Pro., '12, § 189; Civ. Pro., '02, § 160; 1870, XIV, § 162. 

Even where no summons has been served, but attachment has been issued, the Court has 
jurisdiction for certain purposes. Darby v. Shannon, 19 S. C. 526. Action must be regularly 
commenced by attachment to have effect. Tillinghast v. Boston Lumber Co., 39 S. C. 484, 
18 S. E. 120. Voluntary appearance is equivalent to personal service. State v. Cohen, 13 
S. C. 198; State v. Mitchell, 21 S. C. 598; State v. Marshall, 24 S. 0. 507; Benson v. 
Carrier, 28 S. C. 119; Shumate v. Harbin, 35 S. C. 521, 15 S. E. 270; Cone v. Cone, 61 S. C. 
512, 39 S. E. 748; Martin v. Bowie, 37 S. C. 102, 15 S. E. 741; Townes v. City Council, 
46 S. C. 15, 23 S. E. 984; Ex parte Keeler, 45 S. C. 537, 23 S. E. 865; Greenwood 
Association v. Williams, 71 S. C. 421, 51 S. E. 272; Savannah Grocery Co. v. Rizer, 70 S. C. 501, 
50 S. E. 199; Garrett v. Herring Furniture Co., 69 S. C. 278, 48 S. E. 254; Sentell v. 
Railway, 67 S. C. 231. 55 S. E. 155; Meyes v. Evans, 80 S. C. 364, 61 S. E. 216. 

The voluntary appearance of an infant is binding upon judgment where the face of the proceedings 
fails to show his infancy. State v. Lewis, 21 S. C. 598. But if defendant appear only 
to object to jurisdiction because he has not been served, the Court is without jurisdiction. 
State V. Marshall, 24 S. C. 507. 

To be equivalent to personal service it must be made before judgment. State v. Cohen, 13 
S. C. 198. It may be shown by the pleadings or entry in Magistrate's book; it must be shown 
by the proceedings, and cannot, in absence of such showing, be proved by parol testimony. 
Barron v. Dent, 17 S. C. 75. ' 

An appearance for purpose of motion to vacate judgment obtained by void service of 
summons in foreign State gives no jurisdiction of the person. Wren v. Johnson, 62 S. C. 
533, 40 S. E. 937. 

Allowance of provisional remedv deemed commencement of action. Jordan v. Wilson, 69 
S. C. 259, 48 S. E. 224. 

In order to raise objection of plaintiff's want of capacity to sue there must be a general 
appearance. Riley v. Southern Railway, 81 S. C. 392, 62 S. E. 508. 

Partv bound by appearance for purpose of demurring to jurisdiction. Cotton v. Johnson, 
71 S. C. 413, 51 S. E. 245. 

Appearance to intervene gives jurisdiction of person. Whilden v. Chapman, 80 S. C. 84, 
61 S. E. 249. 

Appearance for purpose of setting aside service of summons is not equivalent to personal 
service. Ladd Metals Co. v. American Mining Co., 125 Fed, 1008. 

Appearing waives objection to jurisdiction of person, but not of subject matter. McGrath v. 
Insurance Co., 74 S. C. 70, 54 S. E. 218; Nixon & Danforth v. Insurance Co., 74 S. C. 438, 
54 S. E. 657; Jenkins v. Ry. Co., 73 S. C. 294, 53 S. E. 480. 

Appearance for the sole purpose of removing cause to the Federal Circuit Court is not a 
general appearance and does not waive objections to manner of service of process. Clark v. 
Wells, 203 U. S. 164, 51 L. Ed. 138. 

Appearance by foreign corporation is submission to jurisdiction. Elms v. Southern Power Co., 
78 S. C. 326, 58 S. E. 809. 

Jurisdiction of a defendant's person may be acquired either by service of summons on him or 
his voluntary apearance. Any act by the defendant amounting to a manifestation of an intent is 
such a voluntary appearance. Stephens v. Ringling, 102 S. C. 333 ; 86 S. E. 683. 



OF SOUTH CAROLINA 143 

TITLE VI. 

OF THE PLEADINGS IN CIVIL ACTIONS. 

Chapter I. The Complaint, 143. 

Chapter II. The Demurrer, 144. 

Chapter III. The Answer, 149. 

Chapter IV. The Reply, 152, 

Chapter V. General Rules of Pleading, 153. 

Chapter VI. Mistakes in Pleadings and Amendments, 162. 



CHAPTER I. 

The Complaint. 

(397) § 1. Forms of Pleading. — There shall be no other forms 
of pleading in civil actions in Courts of record in this State, and no other 
rules by which the sufficiency of the pleadings is to be determined, than 
those prescribed by this Code of Procedure. 

Civ. Pro., '12, § 190 ; Civ. Pro., '02, § 161 ; 1870, XIV, § 163. 

Fishburne v. Minott, 72 S. C. 567, 52 S. E. 648. 

It was intended by this Section to change materially the nature and effect of pleading ; 
but not to abolish the substantial characteristics of the several pleadings that are retained 
either in name or by their equivalents under other names. Mobley v. Cureton, 6 S. C. 49 ; cited 
in Warren v. Lagrone, 12 S. C. 45. See, also, note as to object of Code before § 1. 

(398) § 2. Complaint. — The first pleading on the part of the plaintiff 
is the complaint. 

Civ. Pro., '12, § 191; Civ. Pro., '02, § 162; 1S70, XIY, § 164. 

(399) § 3. Complaint — What to Contain. — The complaint shall con- 
tain: 

1. The title of the cause, specifying the name of the Court in which the 
action is brought, the name of the county in which the plaintiff desires the 
trial to be had, and the names of the parties to the action — plaintiff and 
defendant. 

2. A plain and concise statement of the facts constituting a cause of ac- 
tion, without unnecessary repetition. 

3. A demand of the relief to which the plaintiff supposes himself entitled. 
Civ. Pro., '12, § 192 ; Civ. Pro., '02, § 163 ; 1870, XIV, § 165. 

The names of the individuals constituting the copartnership suing must appear in the title. 
Smith V. Walker, 6 S. C. 169. 

Subdivision 2 : A cause of action exists where the legal rights of one party have been 
invaded bv another. Chalmers v. Glenn, 18 S. C. 469; Nance v. Railroad, 35 S. C. 307, 14 
S. E. 629. If the facts alleged do not show the existence and invasion of such rights, the 
complaint is defective, and will be held bad on demurrer. Southern Porcelain Co. v. Thew, 

5 S. C. 5; Chalmers v. Glenn, 18 S. C. 469; Nance v. R. R. Co., 35 S. C. 307, 14 S. E. 629. 
But it is enough if the allegations show distinctly the cause of action. Hammond v. R. R. Co., 

6 S. C. 130. The Court refers the facts to their appropriate form of action. Mason v. 
Carter, 8 S. C. 103; Dowie & Moise v. Joyner, 25 S. C. 123; Warren v. Lagrone, 12 S. C. 45. 
Complaint sufficient if it states any cause of action, either legal or equitable. Mordecai v. 
Seignious, 53 S. C. 95, 30 S. E. 721; Latham v. Harby, 50 S. C. 428, 27 S. E. 862; In- 
dependent Fire Engine Co., v. Richland Lodge, 70 S. C. 572, 50 S. E. 499; Perst's Sons 
& Co. V. Powers, 64 S. C. 221, 41 S. E. 974. Plaintiff may obtain any relief appropriate 
to the pleadings without regard to the form of prayer for relief. Sheppard v. Green, 48 S. C. 
165, 26 S. E. 224. Failure to file complaint not fatal on motion to set aside judgment. 
Clemson College v. Pickens, 42 S. C. 511, 20 S. E. 401. 

The complaint is so defective if it merely allege conclusions of law and not facts. Tutt v. 
R. R. Co., 28 S. C. 388, 5 S. E. 831; Wallace v. R. R. Co., 34 S. 0. 62, 12 S. E. 815; 
Nance v. R. R. Co., 35 S. C. 307, 14 S. E. 629. 

In action for specific performance of contract for sale of land, it is not necessary to 
allege that contract was in writing. Hubbell v. Courtney, 5 S. C. 87. 



144 CODE OF CIVIL PKOCEDURE 

lu action against a commission merchant for account, it is unnecessary to allege a demand 
for account, after stating a refusal to do so. Mason v. Carter, 8 S. C. 103. Where paper 
sued on as a promissory note is not such, but the allegations show a cause of action, the com- 
plaint is sufficient. Dowie v. Joyner, 25 S. C. 133. 

Want of probable cause should be alleged in a complaint in action for malicious arrest 
or it will be demurrable. Hogg v. Pinckney, 16 S. C. 387. 

Subdivision 3 : Complaint is not demurrable as defective in not stating facts sufficient to 
constitute a cause of action because it contains no praver for relief. Balle v. Moselv, 13 
S. C. 439. 

Defective statement cured by attached exhibit. Cave v. Gill, 59 S. C. 256, 37 S. E. 817. 
Exhibits not curing insufficiency in complaint. Cauthen v. Hines, 80 S. C. 432, 61 S. E. 957. 
Particular complaints considered. On written instrument for payment of money. Watson v. 
Barr, 37 S. C. 463, 16 S. E. 189. On bond. State v. Seabrooli, 42 S. C. 74, 20 S. E. 58. 
On note. Bolt v. Gray, 54 S. C. 95, 32 S. E. 148. Damages from tort. Pickens v. R. R. Co., 
54 S. C. 498, 32 S. E. 567. Nuisance. Baltzegar v. R. R., 54 S. C. 242, 32 S. E. 358. 
Conversion. Michalson v. All, 43 S. C. 459, 21 S. E. 323. Recovery of real property. Huggins v. 
Watson, 38 S. C. 504, 17 S. E. 363. On note of officer against the State. Carolina Nat'l Bank v. 
State, 60 S. C. 465, 38 S. E. 629. 

It is unnecessary to allege in what State defendant corporation is chartered. Machen r. 
W. U. Tel. Co., 63 S. C. 363, 41 S. E. 448. 

If complaint states either an equitable or legal cause of action it is sufficient. Ferst's Sons 
& Co. V. Powers, 64 S. C. 221, 41 S. E. 974. 

It is unnecessarv to allege in what State defendant corporation is incorporated. Machen v. 
Telegraph Co., 63 S. C. 363, 41 S. E. 448. - 

Specific performance of contract. National Light and Thorium Co. v. Alexander, 80 S. C. 10, 
61 S. E. 214. 

Action for construction of will and partition. Hunt r. Gower, 80 S. C. 80, 61 S. E. 218, 128 
Am. St. Rep. 862. 

Proof confined to particular act of negligence alleged. Fitzgerald v. Manufacturing Co., 
74 S. C. 234, 54 S. E. 373. 

Proper statements of facts. DuPre v. Southern Railway, 66 S. C. 124, 44 S. E. 580. 

Malicious prosecution. McCall v. Alexander, 81 S. C. 131, 61 S. E. 1106. 

Neither wilfulness nor negligence is necessary to make a tresijass on real estate a tort. 
Baldwin v. Telegraph Co., 78 S. C. 422, 59 S. B. 67. 

Allegation of actionable fraud must include scienter. Bromonia Co. v. Drug Co., 78 S. C. 
482, 59 S. E. 363. 

Not necessarv to allege damages which are the direct result of a wrong. Southern Railwav r. 
Gossett, 79 S. C. 381, 60 S. E. 956. 

Action for cancellation if deed as a cloud on title. Shute v. Shute, 79 S. C. 420, 60 S. E. 
691; Pollitzer v. Beinkempen, 76 S. C. 517, 57 S. E. 475; Guerard v. Jenkins, 80 S. C. 
225, 61 S. E. 258. 

Where plaintiff states two causes of action, one in contract and one in tort, a state of facts 
from which only one liability in unliquidated damages arises, the amount sought to be 
recovered is limited to the amount asked in the prayer. Ray ■;;. Southern Rv., 77 S. C. 103, 
57 S. E. 636. 

Facts required to be stated are basic, ultimate facts as distinguished from facts which are 
merely evidentiary. Alexander v. DuBose, 73 S. 0. 21, 29, 52 S. E. 786. 

Complaint not sufficient as against resident defendant so as to prevent removal to Federal 
Court by non-resident defendant. Bryce v. Southern R. Co., 122 Fed 709. 

Striking out allegations. Pickett v. Southern Railway, 74 S. C. 236, 242, 54 S. E. 375. 

Complaint held sufficient. Hagood v. Blythe, 38 Fed. 76. 

It is not necessary to set out in haec verba written instruments sued on. They may be set 
out according to their legal effect. Bank v. Fidelity, etc., Co., 120 Fed. 315, 316._ 

Plaintiff cannot be made to state allegations of law or the evidence on which he relies to 
prove the facts alleged. A complaint should contain only allegations of naked facts accom- 
panied bv as few modifying adjectives as the case will permit. Bell v. Jackson, 93 S. C. 
556; 78 S. E. 679. ' _ 

Plaintiff is not required to characterize the facts stated in his complaint or to give his 
cause of action a name; that being the province of the Court. Furman v. Land Co., 112 S. C. 
71, 99 S. E. 111. 



CHAPTER II. 

The Demurrer. 

(400) § 1, Defendant to Demur or Answer. — The only pleading 
on tlie part of the defendant is either a demurrer or an answer. It must 
be served within twenty days after the service of the copy of the complaint. 

Civ. Pro., '12, § 193; Civ. Pro., '02, § 164; 1S70, XIV, § IGG. 

Dominion Nat. Bank v. Olympia Cotton Mills, 128 Fed. 181; Lawrence v. Lawrence, 81 
S. C. 126, 62 S. E. 9. 

Extension of time. Wilcox, etc., Co. v. Phoenix Ins. Co., 60 Fed. 929. 

(401) § 2. When the Defendant May Demur. — The defendant may 
demur to the complaint when it shall appear upon the face thereof, either : 

1. That the Court has no jurisdiction of the person of the defendant or 
the subject of the action; or, 



OF SOUTH CAROLINA 145 

2. Tliat the plaintiff has not legal capacity to sue; or, 

This ground of objection is waived unless taken by demurrer Daniels v. Moses, 12 S .G_ 
iqn TlndPr this subdivision, Smith v. Smith, 50 S. C. 54, 27 S. E. 549; Dawkins v. Mathis, 
47 S. C 64, 24 S E 99^ Mickle v. Construction Co., 41 S. C. 394, 19 S. E. 725; Willis v. 

"^"where^ c^ompiaiAt alleges ' corporate existence in plaintiff and nothing appears on its face to 
show his want of corporate authority it is not demurrable on this ground. Cheraw R. R. _t). 
WhitP 14 S C 51 A demurrer under this subdivision can only he interposed where the m- 
rar,-iritv to sue" appears in the complaint. Cone Export, etc., Co. v. Poole, 41 fe. C. ;0, 19 
S E 203. Whei^ sealed note payable to an administrator has been transferred to another, it 
may be sued on in name of administrator for use of the other. Carroll v. Still, 13 S C. 430. 

This question of capacity to sue cannot be put in issue by general denial; it must be made by 
demurrer. Commercial Co. v. Turner, 8 S. C. 110; Palmetto, etc., Co. v. Risley, 25 S. C. 

^°olied!ion'that*^c°aure ?f°*Sioii ^does' not survive cannot be taken by oral demurrer. Duke v. 

Pn>5tnl Tpleg-ranh Co 71 S. C. 95, 50 S. E. 675. 

"^ Waiv^o'f d^efect- BatUe .. C. N. & L, R. Co. 70 S. C. 329, 49 S E. 849 

Demurrer remedy for frivolous complaint. Eishburne v. Mmott, 72 S. C. 568, 52 b. E. 648. 

Pleading to amend complaint may be either by demurrer or answer. Lawrence v. Lawrence, 

^^Ground ^oT'in^apfcity' t^o' sue must be distinctly stated Trimmierj;. AC L. R. R. Co., 
81 S C 203 62 S E. 209; Blackwell v. Mortgage Co., 65 b. 0. 116, 4d b. ih. dyt>. 

Where it is not alleged that plaintiff is a corporation or a partnership composed of individuals. 
Lookout Mountain Med Co. t). Hare, 56 S. C. 456, 35 S. E. 130; Riley & Co. v. Southern Ry. 

*^°bb^ectfon^that^^the^\c^ion'is brought by the Clerk of the Court as administrator in his in- 
dividual capacity when administration is granted to him ofBcially must be taken by demurrer, 
and if not is waived. Trimmier v. A. & C. Air Line Ry., 81 S. C. 203, 62 S. E. 209 

3. That there is another action pending between the same parties, for the 
same cause, or, 

Subdivision 3 does not apply to actions pending in another State. Hill j. Hill 51 S. C. 
144 ^8 S E 309 Nor does it apply where one suit is by only one plaintiff for the recovery 
of personal property, and the other, with additional plaintiffs, includes claim for punitive 
damages Walters v. Laurens Cotton Mills, 53 S. C. 155, 31 S. E. 1. . , , o^ j. 7 

Pendency of another action bv others of same class suing in common right. State ex rel. 
Brown v. A. C. L. R. R. Co., 13 S. C. 308. , .^ .-^ t „„ 

Objection that another action is pending must be by answer unless it appears on the face 
of the complaint. Kiddell v. Bristow, 67 S. C. 175, 45 S. E. 174. , ^ . 

Action Z injunction not in bar to action in nature of quo warranto State ex rel Jernigan v. 
Stitkey? 80 S.'c. 64, 61 S. E. 211, 128 Am St. Rep 855, 15 Am. & Eng Ann. Cas 136. 

Does not apply to pendency of action in Federal Court. Logan v. A. C. L. R K. Co , 8J 
S. C 518 64'^S:V 5^5; Ma/field v. A. C. L. R. R. Co., 79 S. C. 558 61 S. K 106. Evidence 
of dismissal of former action. State ex rel. Jernigan v. Stickley, 80 S. C. 70, 61 S. E. 211, 
19S Am St RpD 885 15 Am. & Eng. Ann. Cas. 136. 

A demurrer ^on the ground that another action is pending between the same parties on 
the same causes of action cannot be sustained, unless that fact appears on the face of the 

''°T' demurrer should have attached a certificate as provided by Rule 18. f^;„„i„„ = 

A demurrer, not accompanied by certificate under Rule 18, niay be stricken out as frivolous 

on mS It Chambers, though judgment on the merits, if it follows as a result of the motion, 

n^fffda'vits'Terfed'^Ttrt'lir demurrer contesting the allegations of a complaint are not 
equivalent to an answer. Duncan v. Duncan, 93 S. C. 487, 76 b. E. luay. 

4. That there is a defect of parties, plaintiff or defendant ; or. 

This ground cannot apply in case misjoinder of parties. Lowry v. Jackson, 27 S. C. 318, 3 

^'This^ltection must be made by demurrer and is waived upon failure to demur. Peatherston v. 
Norris 7 S C. 472; Evans v. McLucas, 12 S. C. 56; Daniels i^- Moses, 12 S. C. 13, Ross ^. 
Lhider, 12 SC. 592; Shull v. Caughman, 54 S. C. 203, 32 S. E. 301; Allen v. Cooley, 53 S. 

'Defect of parties. ' Delleney v. Winnsboro Granite Co., 72 S. C. 39, 51 S. E. 531. 
mether r?ght of action for trespass on realty survives to Pe-on^l or real representative 
should be raised by demurrer or answer. Voyles v. Telegraph Co^- ^8 S C. 432 59 S E. 68. 
Defect of parties distinguished from misjoinder. Wright v. WiUoughby, 79 S. O. 438, 60 b 

^'Rlght to demur for defect of parties not waived by motion to have complaint made more 
definite and certain. Lawrence v. Lawrence, 81 S. C. 126, 52 S. E- y- p^mnlniTit can onlv 

A defect as to misjoinder of causes of action appearing on the face of ^be ^omplamt^an on^y 
be made by demurrer, and when not so raised, it is a waiver of the right. Savannah onem. K.O. v. 
Johnson, 105 S. C. 213, 89 S. E. 810. 

5. That several causes of action have been improperly united; or, 

Joint demurrer bad as to all, must fail though g^ood as to one who joins. Lowry |. 
Tacl^on 27 S C 318 3 S E. 473; Guy v. McDaniel, 51 S. C. 436, 29 b. a-, lao- 
"^"Compiaint not demurrkble for multifarious/ess where it alleges ^^^-'^l^f^l^'^'-^Sill v 
makes a party in posession of the assets under the breach, with notice, a defendant. Ragsdale v. 
Holmes, 1 S. C. 91; Melton v. Withers, 2 S. C. 561. TTurst 9 

Objection to complaint on this ground can only be taken by demurrer ^^^Id .;. Hurst 9 
S. C. 277; Seibels 1;. Railway Co., 80 S. C. 139, 61 S. E. 435, 16 L. R. A., N. S., 1026n. 
It may be taken by any defendant. Suber v. Allen 13 S. C. 317. ,^^,,^^_ .. .y.„ pomnlaint 

Where there is improper joinder of causes of action, 1^"^ a demurrer to the complaint 
therefor, the plaintiff may cure the defect by voluntary amendment of the complaint, buliivan v. 
Sullivan, 24 S. C. 474. 

11 C C P 



146 CODE OF CIVIL PROCEDURE 

Demurrer on this ground will not lie where several plaintiffs, severally owning adjoining 
tracts of land, join in action for damages in snlido for injuries thereto by defendant's dam. 
Hellams v. Switzer, 24 S. C. 39. But demurrer will lie in such case, where the injuries are 
separate and distinct. lb. 

There is not misjoinder of causes of actions where adult ward and three minor wards sue 
their guardian for accounting. Stallings i\. Barrett, 26 S. C. 474, 2 S. E. 483. This objection 
does not apply where creditor sues heir in possession of intestate's land and alleges sufficient 
to show cause of action against administrator, and does not seek judgment against him. Lowry v. 
Jackson, 27 S. C. 318, 3 S. E. 473. 

Proper joinder of several causes of action. Long v. Hunter, 58 S. C. 152, S6 S. E. 581. 
Where the defendant fails to raise the question of misjoinder by demurrer, he cannot afterwards 
do so by motion to require plaintiff to elect on which he will rely. Where the several causes 
of action are blended in one statement such motion may be made. Ross v. Jones, 47 S. C. 
211, 25 S. E. 59 

Demurrer, not motion to strike out, remedy for failure to state cause of action where there 
are several causes. Berry v. Moore Co., 69 S. C. 321, 48 S. E. 249. 

Demurrer not remedy for jumbling causes of action. Marion v. Charleston, 68 S. C. 257, 47 
S. E. 140; Duncan v. Jones Co., 82 S. C. 562, 64 S. E. 749. 

Where only one primary right and wrong are stated there is only one cause of action. Wright v. 
Willoughby, 79 S. C. 438, 60 S. E. 971. 

6. That the complaint does not state facts sufficient to constitute a cause 
of action. 

Civ. Pro., '12, § 194; Civ. Pro., '02, § 165; 1870, XIV, § 167. 

Until it does apear that some fact is ommitted which is necessary to constitute the cause 
of action, no demurrer can be sustained. Balle v. Mosely, 13 S. C. 439. 

The defect must be substantial, and such as cannot be cured except by allegations of answer. 
Childers v. Verner, 12 S. C. 1. 

Where administrator of a distributee of an intestate brings action against the administrator 
of the intestate and joins with him as plaintiff a distributee of such distributee, the complaint 
is demurrable as to such plaintiff distributee on this ground. Robert v. Jones, 10 S. C. 101. 

Complaint alleged subscription by defendant to stock of plaintiff of fifty acres of land, and a 
refusal to convey, and demanded payment in money for the land, without alleging promise to 
pay money or previous demand, and was held not demurrable on this ground. Cheraw and 
Chester R. Co., v. Garland, 14 S. C. 63. In action to recover money won at game of faro, 
if the complaint does not allege that the money was won at one time and sitting, it is demurrable 
on this ground. Trumbo v. Pinley, 18 S. C. 305. 

Omission of allegtaion relating to capacity to use is no ground for demurral under this 
subdivision. Cone Export, etc., Co. v. Poole, 41 S. C. 70, 19 S. E. 203 ; and other cases cited 
under Subdivision 2. 

Allegation as to possession within ten years not necessary in action for partition. 
Griffith V. Cromley, 58 S. C. 448, 36 S. E. 741. 

Demurrer proper remedy for defective statement of cause of action in counter claim. 
Kentucky Refining Co. v. Saluda Oil Mill Co., 70 S. C. 94, 48 S. E. 987.. 

Motion to compel plaintiff to elect, not demurrer, proper remedy where allegations of com- 
plaint are appropriate to either of two causes of action. Welborn v. Dixon, 70 S. C. 118, 49 
S. E. 232, 3 Am. & Eng. Ann. Cas. 407. 

Complaint not demurrable when plaintiff entitled to any relief whatever. Independent Steam 
Fire Engine Co. v. Richland Lodge, 70 S. C. 572, 50 S. E. 499. 

That action does not survive cannot be interposed on oral demurrer. Duke v. Postal Tel. 
Cable Co., 71 S. C. 98, 50 S. E. 675. 

Demurrer to answer to enjoin condemnation proceedings overruled. Columbia v. Melton, 81 
S C 356, 62 S. E. 245, 399. Contributory negligence considered. Cooper v. A. C. L. R. Co., 

69 S. C. 479, 48 S. E. 458; Smith v. Southern Railway, 80 S. C. 4, 61 S. E. 205; McLean 
V. A. C. L. R. Co., 81 S. C. 100, 61 S. E. 900, 1071, 128 Am. St. Rep. 892, 18 L. R. A., 
N. S., 763. 

The judge cannot draw inferences outside of complaint to sustain it. Talbert v. C. & W. C. R. 
Co., 72 S. C. 137, 51 S. E. 564. Demurrer not the remedy for indefinlteness. Pierson v. 
Green, 69 S. C. 561, 48 S. E. 624. 

Complaint is sufficient if it states any cause of action. Independent Co. v. Richland Lodge, 

70 S. C. 572, 50 S. E. 499. ' _ _ 
Proceeding with trial after presentation of demurrer amounts to overruling it. Mauldin v. 

S. A. L. Ry. Co., 73 S. C. 9, 52 S. E. 677. 

(402) § 3. Demurrer — What to Specify. — The demurrer shall dis- 
tinctly specify the grounds of objection to the complaint. Unless it do so, 
it may be disregarded. It may be taken to the whole complaint, or to any 
of the alleged causes of action stated therein. 

Civ. Pro., '12, § 195 ; Civ. Pro., '02, § 166 ; 1870, XIV, § 168. 

The demurrer must be to the entire cause of action, and not to a part of a cause of action 
or defense. Buist v. Salvo, 44 S. C. 143, 21 S. E. 615; Lawson v. Gee, 57 S. C. 506, 35 
S. E. 759. A joint demurrer to a complaint stating a cause of action against any of the 
defendants is bad. Stahn v. Catawba Mills, 53 S. C. 519, 31 S. E. 498. A demurrer must 
distinctly specify the grounds of objection. Carroll v. Still, 13 S. C. 430 ; Buist v. Salvo, 
followed in Sloan v. Seaboard Ry. Co., 64 S. C. 389, 42 S. E. 199; Berry v. Moore Co., 69 S. C. 
321, 48 S. E. 249. 

Objection for misjoinder of parties. Cousar v. Heath, etc., Co., 80 S. C. 472, 61 S. E. 973. 

(403) § 4. How to Proceed, if Complaint Be Amended. — If the com- 
plaint be amended, a copy thereof must be served on the defendant, who 



OF SOUTH CAROLINA 147 

must answer it within twenty days, or the plaintiff, upon filing with the 
Clerk due proof of the service, and of the defendant's omission, may pro- 
ceed to obtain judgment, as provided by Section 526. 
Civ. Pro., '12, § 196; Civ. Pro., '02; § 167; 1870; XIY, § 169. 

Henning v. Western Union Tel Co., 40 Fed. 658. 

It is within the discretion of a Circuit Judge to require an answer to an amended complaint 
in less than twenty days. This section applies only where no time is fixed in the order. Lockwood v. 
Charleston Bridge Co., 60 S. C. 492, 38 S. E. 112. 

If defendant does not request permission to answer amended complaint he cannot object to 
failure to so proyide in order allowing amendment. McDaniel r. A. C. L. R. Co., 76 S. C. 15, 56 
S. E. 543. Order permitting amendment to complaint by striking out certain words in 
complaint may be seryed alone, without seryice of complaint as amended. lb. Guess v. Southern 
Railway, 73 S. C. 267, 53 S. E. 421. Amendment allowed after sustaining demurrer. 
Leesyille Mfg. Co., v. Works, 75 S. C. 342, 55 S. E. 768. 

Construed with § 400 permits plea by either demurrer or answer to amended complaint. 
The rignt to demur to a complaint is not lost by a motion to make more definite and specific. 
Lawrence v. Lawrence, 81 S. C. 126, 62 S. E. 9. 

(404) § 5. Objection Not Appearing in Complaint. — When any of the 
matters enumerated in Section 401 do not appear upon the face of the 
complaint, the objection may be taken by answer. 

Civ. Pro., '12, § 197; Civ. Pro., '02, § 168; 1870, XIV, § 170. 

If the defects do not appear on the face of the complaint, the objection should be made by 
answer. Patterson v. Pagan, 18 S. C. 584; Kiddell v. Bristow, 67 S. C. 175, 45 S. E. 174. 

When any of the matters mentioned in Section 401 as demurrable do not appear upon the 
face of the complaint objection must be taken by answer. Duncan v. Duncan, 93 S. C. 487, 
76 S. E. 1099. 

(405) § 6. Objection Waived. — If no such objection be taken, either 
by demurrer or answer, the plaintiff or defendant shall be deemed to have 
waived the same, excepting only the objection to the jurisdiction of the 
Court, and the objection that the complaint does not state facts sufficient 
to constitute a cause of action, or that the answer does not state facts suf- 
ficient to constitute a defense : Provided, That in cases where the objec- 
tion is made that the complaint does not state facts sufficient to constitute 
a cause of action, or that the answer does not state facts sufficient to con- 
stitute a defense, the party making such objection shall give at least five 
days notice, in writing, to the opposite party of the grounds of such ob- 
jection. 

Civ. Pro., '12, § 198 ; Civ. Pro., '02, § 169 ; 1870, XIV, § 171 ; 190.3, XXIV, 130. 

Kiddell v. Bristow, 67 S. C. 175, 45 S. E. 174; People's, etc.. Fertilizer Co. i'. Charleston, 
etc.. Railway, 83 S. C. 530, 65 S. E. 733. 

Objection that answer does not allege that fraud for which deed is sought to be set aside 
had been discoyered within six years should be by demurrer. Marthinson v. McCutchen, 84 S. 
C. 256, 66 S. E. 120. 

The clear intention of this and foregoing- Sections of this Chapter is that defendant shall give, 
by his demurrer or answer, specific notice that he intends to rely on one or more of these 
specific defenses, if he wishes to make them available. A general denial of all the facts alleged 
in the complaint is not a compliance with these requirements. The object of them is to relieve 
the plaintiff from the necessity of preparing to meet such objections, on trial, unless so notified 
of them, steamship Co. v. Rodgers, 21 S. C. 27; Palmetto Co. v. Risely, 25 S. C. 309. 

Objection for defect of parties comes too late after failure to make it by demurrer or 
answer. Featherston v. Norris, 7 S. C. 472 ; Evans v. McLucas, 12 S. C. 56 ; Daniels v. 
Moses, 12 S. C. 137: Ross v. Linder, 12 S. C. 592. 

All other defects, except want of jurisdiction and of sufficient statements of facts, are cured 
by failure to object by demurrer and answer. Bowden r. Winsmith, 11 S. C. 409; Daniels v. 
Moses, 12 S. C. 130; Jackins v. Dickinson, 39 S. C. 439, 17 S. E. 996; Ross v. Jones, 47 
S. C. 211, 25 S. E. 59; Dawkins r. Mathis, 47 S. C. 64, 24 S. E. 990; Smith v. Smith, 50 
S. C. 54, 27 S. E. 545. 

Objection that complaint does not state facts sufficient to constitute a cause of action 
may be made orally at any stage of the proceedings. Southern Porcelain Co. v. Thew, 5 
S. C. 10; Bowden v. Winsmith, 11 S. C. 409; Childers v. Verner, 12 ^ S. C. 1; Balle v. 
Moselev, 13 S. C. 439; Kennertv v. Etiv/an Co. 17 S. C. 411; Davis v. McDuffie, 18 S. C. 495; 
Hellam's v. Switzer, 24 S. C. 39; Hall r. Young, 29 S. C. 64, 6 S. E. 938. Even after trial of the 
issues on circuit. Garrett r. Weinberg, 50 S. C. 310, 27 S. E. 770. But not for the first time 
on appeal in the Supreme Court. Green r. Green, 50 S. C. 514, 27 S. E. 952. Where a demurrer 
for want of facts sufficient to constitute a cause of action is once ovorrule^d, such ruling is 
binding when motion is rendered on a subsequent trial. Long v. Hunter, 58 S. C. 152, 36 
S. E. 579. 

So oral demurrer- to answer setting up counter-claims may be made on the ground of want of 
cause of action, though not objected to by formal demurrer or answer. State v. Corbin, 16 
S. C. 533. 



148 CODE OF CIVIL PROCEDURE 

Objection for defect of parties must be made bv demurrer or answer. Anderson v. Baughman, 
69 S. C. 40, 48 S. E. 38; Delleney v. Winnsboro Granite Co., 72 S. C. 39, 51 S. E. 531; 
Voyles V. Telegraph Co., 78 S. C. 430, 433, 59 S. E. 68. 

Defendant is required to specify distinctlv the grounds of objection to capacity to sue. 
Blackwell v. Mortgage Co., 65 S. C. 116, 43 S. E. 395. 

A defect appearing on the face of the complaint, the objection is not waived by answer 
without stating the objection, but may be urged on the trial, if the defendant give five days' 
notice in writing. Peterman v. Pope, 74 S. C. 298, 54 S. E. 569. 

Defects appearing on the face of a complaint, not objected to bv demurrer, are waived. 
Savannah Chem. Co. v. Johnson, 105 S. C. 213, 89 S. E. 810. 

Where the defendant did not plead defect of parties demurrer to complaint or bj' answer 
is deemed to have waived the same. "Williams v. Grand Lodge, 109 S. C. 233, 95 S. E. 517. 

(406) § 7. Objection to Jurisdiction of Courts or Tribunals, How 
Made. — When in any ease or proceeding before any Court or other 
tribunal any party shall appear for the sole purpose of objecting to the 
jurisdiction of such Court or tribunal, and such Court or tribunal shall 
upon such objection being made overrule the same, such party may give 
notice, either to the Court or tribunal or to the opposing party, that he 
intends to rely on such jurisdictional objection or reserve his rights there- 
under. Upon the overruling of such objection to the jurisdiction and giv- 
ing of such notice, such party may thereafter appear generally or answer 
or plead or contest upon the merits, and such general appearance, answer, 
pleading or contest upon the merits shall not be deemed a waiver of the 
objection to the jurisdiction. 

1919, XXXI, 55. 

(407) § 8. Notice. — The notice required by Section 406 need not be 
in any special form or in the exact language of this Chapter, but any notice 
which informs the Court, tribunal or opposing party in substance of the 
intention of the party to rely on the objection made, or reserving his rights 
thereunder, shall be deemed a sufficient notice. The notice may be oral, 
if given to the Court or tribunal in the presence of the opposing party or 
his attorney, in which case it shall be the duty of the Court or tribunal to 
make a note of the same, so as to preserve the rights of the party, but in all 
other cases such notice shall be in writing. Notice to the attorney repre- 
senting any party shall be deemed notice to the party. 

1919, XXXI, 55. 

(408) § 9. Who May G-ive Notice. — The word party as used in Sec- 
tions 406, 407 and 409 of this Chapter shall include parties and all other 
persons interested in t.he case or proceeding and having a legal right to make 
the objection to the jurisdiction of the Court or tribunal. 

1919, XXXI, 55. 

(409) § 10. Mode Prescribed Not Exclusive, in What Cases. — Nothing 
in this Chapter shall be construed to impair the right of any part}^ to object 
to the jurisdiction of any Court or tribunal at any time and place in any 
manner now allowed by law and the practice in this State, when such ob- 
jection is based upon the lack of jurisdiction of the subject matter of the 
case or proceeding. 

1919, XXXI. 55. 



• OF SOUTH CAKOLIXA 149 

CHAPTER m. 

The Answer. 

(410) § 1. Answer — What to Contain. — The answer of the defend- 
ant must contain : 

1. A general or specific denial of each material allegation of the com- 
plaint controverted by the defendant, or of any knovrledge or information 
thereof sufficient to form a belief. 

2. A statement of any new matter constituting a defense or counterclaim, 
in ordinary and concise language, without repetition. 

Civ. Pro., '12, § 199; Civ. Pro., '02, § 170; 1S70, XIY, § 172. 

A denial in an answer following the exact words of the allegations is bad as a negative 
pregnant. Curnow r. Ins. Co., 46 S. C. 79, 24 S. E. 74; Bliss Code Pleading-, § 332. A 
denial that plaintiff has "knowledge or information suflBcient to form a belief," etc., is sufficient. 
Gilreath r. Furman, 57 S. C. 289, 35 S. E. 516. The admission of the allegations of a 
paragraph in complaint bv the answer, is an admission only of the facts alleged, and not 
of the conclusion of law. Greer v. Latimer, 47 S. C. 176, 25 S. E. 136. A denial of title 
in claim and delivery does not dispense with the necessity to prove a demand and refusal. 
Ludden v. Southern Music House, 47 S. C. 335, 25 S. E. 150. Denial of deliverv of deed. 
Johnson v. .Johnson, 44 S. C. 364, 22 S. E. 419. 

Allegations of the complaint not denied are admitted. Addison v. Duncan, 35 S. C. 165, 14 
S. E. 305. Answer admitting the simple delivery of note, as alleged in complaint, and then 
asserting that the deliverv was conditional, the deliverv is not admitted. Lipscomb v. Lipscomb, 
32 S. C. 243, 10 S. E. 929. 

Where complaint alleges and answer admits note sued on to be a promissory note, it was 
error to grant nonsuit upon proof that note was under seal. Moore v. Christian, 31 S. C. 337, 
9 S. E. 981. 

The Code has enlarged the defendant's opportunity for making various defenses to the 
action by his answer. Cohrs v. Eraser, 5 S. C. 351. Inconsistent defenses may be set up 
in the answer, ilillan v. Southern Railway Co., 54 S. C. 485, 32 S. E. 539. 

The answer is not to be taken as true, as under former equity practice, untU the plaintiff 
has had an opportunity to controvert it. HubbeU v. Courtney, 5 S. C. 87. 

The defendant must plead in answer aU his defenses, legal or equitable ; he cannot bring a 
separate action on any matter that could have been so pleaded. McAlilv v. Barker, 4 S. C. 
48: Rice v. Mahaffy, 9 S. C. 582. 

And his answer must contain a general or specific denial, or new matter, constituting 
a defense or counterclaim. Clement r. Riley, 29 S. C. 286, 6 S. E. 932. But under general 
denial he may insist on absence of demand. Burckhalter v. Mitchell, 27 S. C. 240, 3 S. E. 
225. Yet general denial raises no issue of failure of consideration, which is an affirmative 
defense. Derry r. Holman, 27 S. C. 621, 2 S. E. 841. 

A general denial will not put at issue the lesal capacitv of corporation to sue. Commercial 
Co. V. Turner. 8 S. C. Ill: Steamship Co. v. Rodsers. 21 S. C. 33: Palmetto Co. v. Risley, 
25 S. C. 309: American Co. v. Hill. 27 S. C. 164, 3 S. E. 82: Land Co. r. WOliams, 35 S. C. 367, 
14 S. E. 821: Pittsburg Plate Glass Co. v. Monroe, 79 S. C. 564. 61 S. E. 92: Charleston 
Live Stock Co. r. Collins, 79 S. C. 383, 60 S. E. 944. But where the complaint against a 
corporation alleges it to be incorporated, and its answer makes only general denial, and it 
regularly appears by attorney and defends on the merits, that is admission of its corporate 
charter." Rembert v. Railroad. 31 S. C. 309, 9 S. E. 968. And where there is a specific 
denial of the allegation of partnership, the ans"wer raises an issue triable by jury. Kerr v. 
Cochran. 29 S. C. 61, 6 S. E. 905. But it wiU put at issue every fact necessary to prove 
plaintiff's claim and allow defendant to controvert his proof thereon. Lyles v. BoUes, 8 S. C. 258. 
And upon plaintiff's failure to prove his case, the defendant may have a nonsuit. Tb. The 
simple answer of "no knowledge" is a denial. Tharin r. Seabrook. 6 S. C. 118. 

Payment must be specially pleaded. McElwee v. Hutchinson. 10 S. C. 488. So a plea of 
justification, -which cannot be sho^vn under a general denial. Henderson v. Bennett, 58 S. C. 
30. 36 S. E. 2. 

But where certain credits are allowed by complaint, and judgment claimed for special 
balance, the defendant, under general denial, can prove other payments to show balance. JTb 

Where answer in action for assault and battery admitted the complaint, but pleaded that the 
defendant committed the assault in self-defense, it was sufficient. Hughey v. KeUar, 34 S. C. 
268. 13 S. E. 475. Plea of confession and avoidance does not establish issues raised bv general 
denial. Stanley r. Shoolbred. 25 S. C. 181. 

Where matter of counterclaim is not so pleaded, and judgment thereon demanded, it can 
onlr serve as a defense, and not as a counterclaim. Trimmier v. Thompson, 10 S. C. 185 ; 
HuJnbers r. Brisbane, 25 S. C. 506: McGee v. Wells, 37 S. C. 367, 16 S. E. 29. And as a 
counterclaim, cannot be proved at trial. Sullivan v. Byrne, 70 S. C. 130; Willjams v. Irby, 15 
S. C. 458. There is no particular form prescribed for a counterclaim. Co-operative Co. v. 
Walker. 61 S. C. 315. 39 S. E. 525. 

No objection to answer that it is not responsive to complaint : its only effect is that any 
allegation not denied stands admitted. Zimmerman v. Amaker, 10 S. C. 100. 

Demurrer proper remedv for defective statement of cause of action in cotmterclaim. Ken- 
tucky Refining Co. v. Saluda Oil Mill Co., 70 S. C. 94. 48 S. E. 987. 

Xo new matter is properly pleaded in an answer unless it constitutes a defense, or a counter- 
claim. Montgomery v. Delaware Ins. Co., 67 S. C. 405, 45 S. E. 934. 

In order to avail, contributorv neslisence must be pleaded, Strickland v. Capital City Mills, 
70 S. C. 211, 49 S. E. 478. 

Fraud an equitable defense in action to recover land. WUcos v. Priester, 68 S. C. 106, 46 
S. E. 553. 



150 CODE OF CIVIL PROCEDURE 

Plea of contributory negligence. Sharpton v. Augusta and Aiken Ry., 72 S. C. 162, 51 S. E. 
553; Charping v. Toxaway Mills, 70 S. C. 470, 50 S. E. 186; Ogilvie v. Conway Lumber Co., 
80 S. C. 7, 61 S. E. 200. 

Matter in answer containing general denial inconsistent with allegations of complaint, and 
admissible in evidence under the general denial, is merely redundancy, and may be stricken out. 
Montgomery v. Insurance Co., 67 S. C. 404, 45 S. E. 934. 

Matter in mitigation of damages to be pleaded. Latimer v. York Cotton Mills, 66 S. C. 
135, 44 S. E. 559. 

Suicide as cause of forfeiture in insurance must be specially pleaded. Latimer v. Woodmen of the 
World, 62 S. C. 145, 40 S. E. 155. 

Breach of condition subsequent is an affirmative defense, which must be pleaded and proved. 
Thompson v. Insurance Co., 77 S. C. 294, 57 S. E. 848. 

Under general denial title can be shown in third party. Pooler v. Smith, 73 S. C. 103, 
52 S. E. 967. 

Assumption of risk of employment. Cheek v. S. A. L. Ry., 81 S. C. 348, 63 S. E. 402; 
Shirley v. Abbeville Furniture Co., 76 S. C. 452, 57 S. E. 178, 121 Am. St. Rep. 952; 
Alexander v. Carolina Mills, 83 S. C. 17, 64 S. E. 914; Long v. Ry. Co., 50 S. C. 53, 27 
S. E. 531; Hall v. N. W. R. Co., 81 S. C. 522, 62 S. E. 848; Hutchings v. Manufacturing 
Co., 68 S. C. 514, 47 S. E. 710; Owens v. Mills, 83 S. C. 19,. 64 S. E. 915; Betchman v. 
Railroad Co., 75 S. C. 68, 55 S. E. 140; Kitchens v. Southern Ry. Co., 80 S. 0. 531, 61 
S. E. 1016; Davis v. N. W. R. Co., 75 S. C. 303, 55 S. E. 526; Wofford v. Cotton Mills, 
72 S. C. 348, 51 S. E. 918; Green v. Catawba Power Co., 77 S. C. 426, 58 S. E. 147. 

Estoppel need not be pleaded as a defense, but may be shown under a general denial. 
Scarborough v. Woodley, 81 S. C. 329, 62 S. E. 405. 

Judgment in Federal Court on note for fertilizers is not res judicata of action in State 
Court for damages to crops of plaintiff caused by use of that fertilizer, where question had 
been raised in Federal Court by answer, but withdrawn by permission of Court. Kirven v. 
Virginia-Carolina Chemical Co., 77 S. C. 493, 58 S. E. 424; Virg-inia-Carolina Chemical Co., v. 
Kirven, 215 U. S. 252, 54 L. Ed 179. 

Where, in case on which such judgment is based, testimony of such defense was excluded 
on objection of defendant, he is estopped to raise question of res adjudicata in subsequent 
action. Virginia-Carolina Chemical Co. v. Kirven, 215 U. S. 252, 54 L. Ed. 179. 

Montgomery v. Seaboard Air Line Railway, 73 S. C. 503, 508, 53 S. E. 987. 

Defendant will not be allowed to deny any allegation of ownership of note by payee on the 
ground that he has not information sufficient to form a belief as to the truth thereof, where 
the admitted correspondence between the parties shows that the makers had full information 
after the maturity of the note that the payee did own same and intended to enforce payment. 
Bank v. Fripp, 101 S. C. 185, 85 S. E. 1070. 

An answer is frivolous when it is clearly insufficient on its face in that it does not con- 
trovert the material allegations of the complaint. 

The defendant, answering a complaint alleging that defendant endorsed and delivered a 
note, particularly describing it, to plaintiff for value, cannot deny knowledge of it, for such 
defendant is bound to know whether or not she did endorse and deliver. She must deny the 
act or else the answer is frivolous, unless taken as admitted, and no denial will be heard in her 
pleadings, unless she denies the fact alleged which is peculiarly in her knowledge. Trust Co. v. 
Kibler, 105 S. C. 513, 90 S. E. 159. 

(411) § 2. Counterclaim — Several Defenses. — The counterclaim, men- 
tioned in the last Section must be one existing in favor of a defendant, and 
against a plaintiff, between whom a several judgment might be had in the 
action, and arising out of one of the following causes of action : 

1. A cause of action arising out of the contract or transaction set forth 
in the complaint as the foundation of the plaintiff's claim, or connected with 
the subject of the action. 

2. In an action arising on contract, any other cause of action arising also 
on contract, and existing at the commencement of the action. 

The defendant may set forth by answer as many defenses and counter- 
claims as he may have, whether they be such as have been heretofore de- 
nominated legal or equitable, or both. They must each be separately stated, 
and refer to the causes of action which they are intended to answer, in such 
manner that they may be intelligibly distinguished. 

Civ. Pro., '12, § 200 ; Civ. Pro., '02, § 171 ; 1870, XIV, § 173. 

In action by executor to recover defendant several notes due testator, he cannot set up as 
counterclaim legacies given him, but unassented to by executor. Latimer v. Sullivan, 30 S. C. 
Ill, 8 S. E. 639. 

A defendant cannot set up as a counterclaim a debt purchased by him after commencement 
of the action. Enter v. Quesse, 30 S. C. 126, 8 S. E. 796. 

A counterclaim for damages from tort cannot be set up against an action for damages from 
tort. Simkins v. R. R., 20 S. C. 258. 

A tort arising out of contract may be waived, and the same cause of action treated as a con- 
tract and set up as such, by way of counterclaim to action on another contract. Boyce v. 
Parker, 11 S. C. 337. Unascertained damages arising ex contractu are admissible as a counter- 
claim, lb. 

In action for damages by trespass, the defendant cannot set up a debt due by plaintiff, as 
counterclaim. Sharp v. Kinsman, 18 S. C. 108. A cause of action for conversion of property 



OF SOUTH CAROLINA 151 

cannot plead as counterclaim in an action on a note. Lenhardt v. French, 57 S. C. 493, 35 
S. E. 761. 

A claim that does not fall under either of the above subdivisions cannot be set up as a 
counterclaim. Ex parte Bank, 18 S. C. 289; Copeland v. Young, 21 S. C. 276; Humbert v 
Brisbane, 25 S. C. 506. 

A counterclaim cannot be interposed in an action for recovery of personal property, unless, 
perhaps, under some exceptional circumstances, eqiiitable relief may be demanded. Williams v 
Irby, 15 S. C. 561; Talbott r. Padgett, 30 S. C. 167, 8 S. E. 845; Bradham v. Bradham 
54 S. C. 404, 32 S. E. 444; Ludden r. Hornsby, 45 S. C. Ill, 22 S. E. 781. 

Partnership account in favor of defendant may be set up as counterclaim to his individual 
debt, if partnership be unsettled and upon settlement a balance would be due him. Mills v 
Carrier, 30 S. C. 617, 9 S. E. 350, 741. 

A separate judgment in favor of one of several defendants may be given on counterclaim, 
showing a separate cause of action in his favor. Plyler r. Parker, 10 S. C. 465. 

Defendant cannot set up against plaintiff, as counterclaim, a debt due the defendant by 
firm of which plaintiff is a member. Byrd v. Charles, 3 S. C. 352. 

The answer may set forth many and inconsistent defenses, either legal or equitable. Cohrs v. 
Eraser, 5 S. C. 354; Mobley v. Cureton, 6 S. C. 68; Cooper v. Smith, 16 S. C. 331; Millan v. 
So. Ry. Co., 54 S. C. 485, 32 S. E. 539. If he fail upon one, he may fall back on the others. 
Ransom v. Anderson, 9 S. C. 440. 

A plea of Statute of Limitations to the "money items" set up in a complaint, stating two 
causes of action, one of which was for a sum of money made up of several items and the 
other for a penalty, was not sufficient as a defense to the second cause of action. County v. 
Miller, 16 S. C. 244. 

Where accounts containing usurious interest have been- settled by note, and action is brought 
on the latter, defendant cannot interpose counterclaim for the excessive interest charged. Witte v 
Weinberg, 37 S. C. 579, 17 S. E. 684. 

An individual claim of partner against plaintiff cannot be set up as counterclaim by 
partnership. Pope Mfg. Co. v. Welch, 55 S. C. 528, 33 S. E. 787; 59 S. C. 29; 37 S. E. 20. 

Parol contract as foundation for counterclaim in action on written contract. V.-C. Chemical Co 
V. Moore, 61 S. C. 166, 39 S. E. 346. 

An action for tortious conversation of trust funds by trustee is an action on contract. 
Randolph v. Walker, 78 S. C. 157, 59 S. E. 856. 

Counterclaim arising out of tort cannot be set up in action, for tort. Roberts v. Jones, 71 
S. C. 404, 51 S. E. 240. 

Demurrer to counterclaim not setting out contract. Kentucky Refining Co. v. Saluda Oil Mill 
Co., 70 S. C. 89, 48 S. E. 987. 

Equitable claim set up in answer in claim and delivery. Sparks v. Green, 69 S. C. 227 
48 S. E. 61. 

Set off allowed in proceedings to enforce builder's lien. Tenney v. Power Co., 69 S C 
431, 48 S. E. 457. 

When costs cannot be set off against salary. Baptist Church v. Dart, 67 S. C. 338, 45 
S. E. 753, 100 Am. St. Rep. 727. 

Damages for defect in quality of goods sold, when obvious, cannot be offset in action to 
recover price. Brooke v. Laurens Milling Co., 78 S. C. 205, 58 S. E. 806, 125 Am. 
St. Rep. 780. 

See, also, Kirvin i-. Virginia-Carolina Chemical Co., 77 S. C. 505, 58 S. E. 424; Gwynn v. 
Citizens Telephone Co., 69 S. C. 442, 48 S. E. 460, 104 Am. St. Rep. 819, 67 L. R. A. Ill; 
Greenwood Drug Co. v. Bromonia Co., 81 S. C. 516, 62 S. E. 840, 128 Am. St. Rep. 929; 
Virginia-Carolina Chemical Co. v. Kirven, 215 U. S. 252, 54 L. Ed. 179. 

Damages from breach of con.tr act may be set up as counterclaim in action for failure of 
common carier to furnish plaintiff telephone connection. Gwvnn v. Citizens' Tel. Co., 69 S. C. 
434, 48 S. E. 460, 104 Am. St. Rep. 819, 67 L. R. A. 111.' 

In action by county for money judgment counterclaim cannot be set up by defendant in 
form of account not duly itemized, verified, filed and audited. Greenville County v. Greenville, 
84 S. C. 410, 66 S. E. 417. 

A set off set up in an answer alleging that it made the note sued on in the complaint subject 
to it as a payment thereon was not a counterclaim within the meaning of this Section, 
therefore, did not have to be denied bv the plaintiff in order to raise an issue thereon. Bank v. 
Furniture Co., 102 S. C. 329, 86 S. E. 680. 

Part payments of a mortgage debt, constituting- the cause of action in plaintiff's complaint, 
cannot be pleaded as a counterclaim, since no separate judgment could be based on such 
payment, which is the necessary requisite of a counterclaim under this Section. Green v. 
Washington, 105 S. C. 137, 89 S. E. 649. 

Part payments of a mortgage debt, constituting the cause of action in plaintiff's complaint, 
cannot be pleaded as a counterclaim, since no separate judgment could be based on such 
pajTnent, which is the necessary requisite of a counterclaim under this section. Green v. 
Washington, 105 S. C. 137, 89 S. E. 649. 

A set off pleaded in answer by defendant in an action against him on a note wherein he 
claimed that he was entitled to such set off by reason of contract he had entered into with 
the _ plaintiff and a third party to insure him against certain loss, which loss had occurred but 
plaintiff had failed to live up to his agreement, was held to be good and available in such 
action, even though the third party to the contract set up in the set off was not a party 
to the action. Farmers Union Mercantile Co. v. Anderson, 108 S. C. 66, 93 S. E. 422. 

Under this section it is unnecessary that defendant's counterclaim arise out of the contract or 
be connected with the contract sued on. Ihid. 

Under a warehouse contract of insurance whereby the insured was to be paid the highest market 
price at the time of any fire, the failure so to do may constitute a counterclaim which was 
obviously ex contractu under the provisions of this Section. An action on contract wherein 
allegations of negligence are made, cannot convert the action into one ex delicto. Ibid. 

(412) § 3. Demiirrer and Answer — When Allowed.— The defendant 
may demur to one or more of several causes of action stated in the com- 
plaint, and answer the residue. 

Civ. Pro., '12, § 201; Civ. Pro., '02, §172; 1870, XIV, § 174. 



152 CODE OF CIVIL PROCEDURE 

(413) § 4. Sham and Irrelevant Defenses to Be Stricken Out. — Sham 
and irrelevant answers and defenses may be stricken out on motion, and 
upon such terms as the Court may, in its discretion, impose. 

Civ. Pro., '12, § 202 ; Civ. Pro., '02, § 173 ; 1S70, XIV, § 175. 

An answer making general denial cannot be stricken out as sham, whether verified or not. 
Ransom v. Anderson, 9 S. C. 439. 

Motion to so strike out such pleadings should not in terms demand judgment; but if nothing 
remains of the answer for trial, after motion is granted, judgment may be pronounced at once. 
Tharin v. Seabrook, 6 S. C. 113. 

Such motions ordinarily present questions of fact to be determined upon affidavits or as 
the Court may direct. Ih. 

If, the defense is manifestly false and intended to delay, it may be struck out; but this should 
be done only in cases free from doubt. Ih. 

An answer is not untrue which has been sustained on Circuit. Hall v. Woodward, 30 S. C. 
56i, 9 S. E. 684. 

An order refusing to strike out answer as sham and irrelevant is not appealable. Citizens 
and Marine Bank v. Witcover, 77 S. C. 44], 58 S. E. 146. 

An answer requiring' argument and careful examination to answer it, cannot be said to be 
frivolous. Boyleston v. Crews, 2 S. C. 422 ; Dominion Nat. Bank v. Olympia Cotton Mills, 128 
Fed. 181, 182. 

An answer admitting the contract alleged in the complaint and alleging the subsequent 
agreement for extension of time for payment, on consideration of a partial payment in cash 
and notes secured by a mortgage for the balance, and that the latter agreement was delayed 
on account of illness of the defendants, held • properly stricken out as sham where the Court 
found tiiat the defendant never intended to perform the agreement upon which the promised 
extension was based, and such defense was untrue. I. C. Corp. v. Parmington Corp., 100 S. 0. 
196, 84 S. E. 710. 

An answer in an action brought in the Spring of 1914 on notes due in December 1913, 
which admits the execution of the notes and that they have not been paid, etc., but pleads 
plaintiff has agreed to extend time for payment to November, 1914, for consideration, is sham 
under this Section, where the trial occurred after the time extended for payment as alleged 
in the answer. Ibid. 

Under the terms of this Section the word sham is synonymous with false and applicable 
to designate all the pleadings which are in fact false, whether good or bad in substance, but 
a pleading is not sham merely because it is legally insufficient or because it contains incon- 
sistent averments or omits material facts. Germofert Co. v. Castles, 97 S. C. 389, 81 S. E. 665. 

A motion to strike out a pleading as sham can only be directed against the entire pleading, 
and the whole answer will not be stricken upon a showing that a separable part of it is 
sham. Ibid. 

A motion to strike out a pleading as sham is not regarded favorably and will only be granted 
where the falsity of the pleading clearly appears; its truth or falsity ordinarily being for the 
jury. Ibid. 

In an action on a promissory note for the purchase of fertilizer, which stipulates that the 
maker would in nowise hold the payee responsible for practical results of fertilizer on crops, it 
is error to strike out as sham a counterclaim alleging that plaintiff represented that the 
fertilizer was adapted to promote growth of cotton and defendant purchased it relying on such 
representations, but that it in fact damaged his cotton crop ; the counterclaim being proper. Ibid. 

Where an entire pleading or part of a pleading setting up- a defense consists of irrelevant 
matter, a general demurrer will lie to it, but it may not be stricken out on motion under this 
Section providing for the striking out of irrelevant matter contained in pleading otherwise 
good. Ibid. 

A denial of information sufficient to form a belief as to the truth of an allegation that the 
payee of a past due promissory note is the owner thereof, held properly stricken from all 
answers by makers in an action thereon, as sham defense; where the admitted correspondence 
between the parties shows the makers had full information after the maturity of the note that 
the payee held same and the purpose to enforce the payment. Bank of Johnson v. Fripp, 101 
S. C. 185, 85 S. E. 1070. 



CHAPTER IV. 
The Reply. 

(414) § 1. Reply — Demurrer to Answer. — When the answer con- 
tains new matter constituting a counterclaim, the plaintiff may, within 
twenty days, reply to such new matter, denying generally or specifically 
each allegation controverted by him, or any knowledge or information 
thereof sufficient to form a belief ; and he may allege, in ordinary and con- 
cise language, without repetition, any new matter not inconsistent with the 
complaint, constituting a defense to such new matter in the answer; and 
the plaintiff may, in all cases, demur to an answer containing new matter, 
where, upon its face, it does not constitute a counterclaim or defense ; and 
the plaintiff may demur to one or more of such defenses or counterclaims 
and reply to the residue of the counterclaims. 



OF SOUTH CAROLINA 153 

And in other cases, where an answer contains new matter constituting a 
defense by way of avoidance, the Court may, in its discretion, on the de- 
fendant 's motion, require a reply to such new matter ; and in that case the 
reply shall be subject to the same rules as a reply to a counterclaim. 

Civ. Pro., '12, § 203 ; Civ. Pro., '02, § 174 ; 1870, XIV, § 176. 

The plaintiff's reply must deny the counterclaim or allege some new matter as defense thereto, 
or judgment will go against him for the counterclaim. Hubbell v. Courtney, 5 S. C. 89 Latimer v 
Sullivan, 30 S. C. Ill, 8 S. E. 639. 

A general denial of a counterclaim puts in issue all the allegations upon which it rested 
Atlantic Co. v. Sullivan, 34 S. 0. 301, 13 S. E. 539. 

When answer upon its face does not show matter constituting- a counterclaim or defense 
it is demurrable. Clement v. Riley, 29 S. C. 286, 6 S. E. 932; Lipscomb v. Lipscomb, 32 S. C. 
243, 10 S. E. 929. But it may be replied to and determined at the same time. Latimer v 
Sullivan, 30 S. C. Ill, 8 S. E. 639; Talbott v. Padgett, 30 S. C. 167, 8 S. E. 845. 

A reply without an order of Court where the answer contains no counterclaim is improper, but 
should not be formally stricken out. Davis v. Schmidt, 22 S. C. 128; Egan v. Bissell, 54 S C 
80, 32 S. E. 1; Price v. Ry. Co., 38 S. C. 199, 17 S. E. 732; Bank v. Gadsden, 56 S. C. 313, 33 
S. E. 575. 

Counterclaim set up in answer, served with motion for leave to file, is admitted, if not replied 
to within the time. Sanders v. Sanders, 31 S. C. 604, 9 S. E. 813. 

Where answer sets up payment and laches as defense, it is demurrable when the facts set forth 
as proof thereof are insufficient to determine the defenses. Mobley v. Cureton, 6 S. 0. 49. 
An objection that the answer is not responsive to the complaint cannot be taken under the Code. 
Zimmerman v. Amaker, 10 S. 0. 98. 

An oral demurrer will lie to a counterclaim, which shows on its face that it is based on a con- 
tract void under the Statute of Frauds. Civil Code, § 5734; Mendelsohn v. Banov, 57 S. C. 
148, 35 S. E. 499. 

Answer must contain (1) general or specific denial, or (2) new matter constituting defense 
or counterclaim. Lattimer v. York Cotton Mills, 66 S. C. 135, 44 S. E. 559. 

Reply to defense by way of avoidance was intended for the benefit of defendant. Kennedy v. 
Hill, 79 S. C. 271, 60 S. E. 689. 

It is not necessary to reply to answer not setting up counterclaim. Craig Milling Co. v. Cromer, 
85 S. C. 350, 67 S. E. 289. 

Under this Section, where an answer contains new matter constituting a defense by way of 
avoidance, the Court can, in its discretion, on defendant's motion, require a reply thereto, the 
matter of requiring a reply is within the trial Court's discretion, which will not be interfered 
with, in the absence of prejudicial abuse. Powell v. Insurance Co., 97 S. C. 375, 81 S. E. 654. 

In an action to recover amounts due on a fire insurance policy, where the complaint ignored 
an award as a nullity, and where the defendant's answer set up the award in bar of the 
action, the plaintiff was not required to reply to such answer, since under this Section a reply is 
unnecessary, except when a counterclaim is set up in the answer, or when it is required by special 
order of Court under the last paragraph of Section 414. 

On plaintiff's motion to file a reply, where the Court considered affidavits in behalf of the 
plaintiff, but refused to consider counter affidavits on the part of the defendant, was error. 

After demurrer was overruled to answer, plaintiff's motion for leave to file a reply was granted, 
without hearing counter affidavits of defendant, is not prejudicial to defendant, under this section, 
providing that where an answer contains new matter constituting a defense, "the Court may, 
in its discretion require a reply to such new matter." Rich v. S. A. L. Ry., 108 S. C. 30, 93 S. E. 250. 

(415) § 2. Motion for Judgment Upon Answer. — If the answer con- 
tain a statement of new matter constituting a counterclaim, and the plain- 
tiff fail to reply or demur thereto within the time prescribed by law, the 
defendant may move, on a notice of not less than ten days, for such judg- 
ment as he is entitled to upon such statement ; and, if the case require it, a 
writ of inquiry of damages may be issued. 

Civ. Pro., '12, § 204 ; Civ. Pro., '02, § 175 ; 1870, XIV, § 177. 

(416) § 3. Demurrer to Reply. — If a reply of a plaintiff to any de- 
fense set up by the answer of the defendant be insufficient, the defendant 
may demur thereto, and shall state the grounds thereof. 

Giv. Pro., '12, § 205 ; Civ. Pro., '02, § 176 ; 1870, XIV, § 178. 
Kennedy v. Hill, 79 S. C. 271, 60 S. E. 689. 



CHAPTER V. 

General Rules of Pleading. 

(417) § 1. Pleadings to Be Subscribed and Verified. — Every plead- 
ing in a Court of Kecord must be subscribed by the party or his attor- 



154 CODE OF CIVIL PROCEDURE 

ney; and when any pleading is verified, every subsequent pleading, ex- 
cept a demurrer, must be verified also. 

Civ. .Pro., '12, § 206; Civ. Pro., '02, § 177; 1870, XIV, § 179. 

Cited in Reeder v. Workman, 37 S. C. 413, 16 S. E. 187. 

Verified return to order to show cause accepted as true unless contradicted by evidence. State v. 
Farnum, 73 S. C. 193, 53 S. E. 85. 

Verification to complaint held sufficient so as to require verified answer. Robinson v. Gregg, 
67 Fed. 186. 

Where the complaint is not verified, petition for removal of part of controversy to Federal 
Court need not be verified. Harley v. Home Ins. Co., 125 Fed. 792. 

The verification to pleading- made by Assistant District Manager of a corporation held to be good 
under the provisions of this Section, as it does not limit the power to any particular officer. 
Southern Cotton Oil Co. v. Lightsey, 100 S. C. 41, 84 S. E. 301. 

(418) § 2. Pleadings — ^How Verified. — The verification must be to the 
effect that the same is true to the knowledge of the person making it, except 
as to those matters stated on information and belief, and, as to those mat- 
ters, he believes it to be true ; and must be by the affidavit of the party, or, 
if there be several parties united in interest, and pleading together, by one 
at least of such parties acquainted with the facts, if such party be within 
the county where the attorney resides, and capable of making the affidavit. 
The affidavit may also be made by the agent or attorney, if the action or 
defense be founded upon a written instrument for the payment of money 
only, and such instrument be in the possession of the agent or attorney, or 
if all the material allegations of the pleading be within the personal knowl- 
edge of the agent or attorney. When the pleading is verified by any other 
person than the party, he shall set forth in the affidavit his knowledge, or 
the grounds of his belief on the subject, and the reasons why it is not made 
by the party. When a corporation is a party, the verification may be 
made by any officer thereof ; and when the State, or any officer thereof in 
its behalf, is a party, the verification may be made by any person ac- 
quainted with the facts. The verification may be omitted when an admis- 
sion of the truth of the allegation might subject the party to prosecution 
for felony. And no pleading can be used in a criminal prosecution against 
the party as a proof of a fact admitted or alleged in such pleading: Pro- 
vided, That the verification of any pleading in any Court of Record in this 
State may be omitted in all cases where the party called upon to verify 
would be privileged from testifying as a witness to the truth of any matter 
denied by such pleading. 

Civ. Pro., '12, § 207; Civ. Pro., '02, § 178; 1870, XIV, § 180. 

When matters are pleaded upon knowledge, it is unnecessary to add the words "on Information 
and helief." Small v. Wilder, 6 S. C. 402. So, where it is upon information and belief, it is 
unnecessary to state that it is upon knowledge. lb.. 

Where the answer is negative merely of the complaint, the same form of verification is necessary. 
lb. 

Where the complaint does not state which of its allegations are made on knowledge and which_ 
on information and belief, the verification is insufficient in form if it say that "the complaint" 
is true of his own knowledge, except as to matters therein stated on information and belief, and 
as to those matters he believes it to be true." Hecht v. Freisleben, 28 S. C. 181, 5 S. E. 475; 
Burnmester v. Moseley, 33 S. C. 251, 11 S. E. 786; Addison v. Sugette, 50 S. C. 201, 28 S. E. 948. 

Where the verification is made by another than the party, it must set forth his knowledge or 
the grounds of his belief with sufficient clearness. lb. 

An attorney may verify a complaint only in two cases: 1. Where the action is founded upon 
a written instrument and for payment of money only, and that instrument is in his possession; 
and, 2. Where all the material allegations are within his personal knowledge. Hecht v. 
Freisleben, 28 S. C. 181, 5 S. E. 475. 

Hence, attorney cannot verify complaint on an open account, verified by affidavit of plaintiff. 
Bray Clothing Co. v. Shealy, 53 S. C. 12,, 30 S. E. 620. Verification of statement in controversy 
without action must be made by the parties. Reeder v. Workman, 37 S. C. 413, 16 S. E. 187. 

A party may always verify hi.s own pleading. Holmes v. Moore, 63 S. C. 182, 41 S. E. 90. 
Sufficiency of Verification by agent. Carolina Grocery Co. v. Moore, 63 S. C. 184, 41 S. E. 88. 

Vander Veen v. Wheeler, 76 S. C. 180, 56 S. B. 679. 

Where a complaint is verified, plaintifl may return unverified answer refusing to accept it 
because it does not come within the provisions of this Section requiring verification. Southern 
Oil Co. V. Lightsey, 100 S. C. 41, 84 S. E. 301. 



OF SOUTH CAROLINA 155 

A complaint in an action on contract for the payment of money only may be verified by tlie 
plaintiff's attorney where such instrument is in his possession, and where these facts appear 
on the face of the papers, it is unnecessary tliat the reason why the verification in such case is 
not made by the plaintiff be stated in so many words. Boykin Buggy Co. v. Lightsey, 102 S. C. 
283, 86 S. E. 639. 

(419) § 3. How to State an Account in Pleading. — It shall not be 
necessary for a party to set forth in a pleading the items of an account 
therein alleged; but he shall deliver to the adverse party, within ten days 
after a demand therefor in writing, a copy of the account, which, if the 
pleading is verified, must be verified by his own oath, or that of his agent 
or attorney, if within the j ersonal knowledge of such agent or attorney, to 
the effect that he believes it to be true, or be precluded from giving evidence 
thereof. The Court, or a Judge thereof, may order a further account, when 
the one delivered is defective, and the Court may, in all cases, order a bill 
of particulars of the claim of either party to be furnished. 

Civ.. Pro., '12, § 208 ; Civ. Pro., § 179 ; 1870, XIV, § 181. 

Defendant having failed to demand an itemized account, he cannot complain of the judgment 
upon the ground that the account was not itemized. Sloan v. Westfield, 17 S. C. 589. 

Account furnished under this Section no part of complaint or cause of action. Creighton v. 
Creighton, 68 S. C. 326, 47 S. E. 439. 

Exhibits attached to complaint are not to be considered on passing on demurrer thereto. 
Cave V. Gill, 59 S. C. 256; Nichols v. Montgomery, 68 S. C. 332, 335, 47 S. E. 373. 

In suit on a number of distinct claims, this section does not apply, tlagood v. Blythe, 
38 Fed. 76. 

Defendant having failed to demand an itemized account, he has no right to object to proof of 
several sums constituting the full amount demanded. Albion Phosphate Mining Co. v. Wylie, 
77 Fed. 541. 

(420) § 4. Pleadings to Be Liberally Construed. — In the construction 
of a pleading for the purpose of determining its effect, its allegations shall 
be liberally construed, with a view of substantial justice between the parties. 

Civ. Pro., '12, § 209 ; Civ. Pro., '02, § 180 ; 1870, XIV, § 182. 

Pleading must not be construed strongly against pleader. Childers v. Verner, 12 S. C. 1 ; 
Wallace v. Lark, 12 S. C. 576; Dowie v. Joyner, 25 S. C. 123; Park v. Brooks, 38 S. C. 300, 17 
S. E. 23; Jerkowiski v. Marco, 56 S. C. 241, 34, S. E. 388; Mason v. Carter, 8 S. C. 104; Harley 
V. Morgan, 29 S. C. 258, 7 S. E. 487. But this Section does not permit allegations of fact in 
the alternative. Iseman v. McMillan, 36 S. C. 28, 15 S. E. 336. 

Bussey v. C. & W. C. Ry. Co., 75 S. C. 125, 55 S. E. 163; Hagood v. Blythe, 38 Fed. 76; 
Dominion National Bank v. Olympia Cotton Mills, 128 Fed. isi. 

A complaint which alleged that the plaintiff was injured by a railroad train, while at a traveled 
place, without anything to show that it was not an ordinary public ci'ossing, and also alleged that the 
bell was not rung, nor any other precaution taken to avoid injury, states a cause of action, when 
liberally construed by this Section, under Civil Code §§ 3222-3230, 1912. 

Where a complaint in its prayer only demands judgment for a certain amount and the estate 
of the deceased is insuiBcient to pay the debts of the plaintiff and other creditors, and that land 
of deceased be sold and the proceeds applied to the payment of cosfs of administration and debts 
of the estate, etc., wherein the comulaint itself has no allegation that the estate is debtor to 
any other person than plaintiff, nor that suit was for the benefit of all creditors, nor pleading 
for other creditors to come in, cannot be liberally construed under this Section to state a cause of 
action for a creditor's bill. Pleading is not always form, but often substance; as it is in the 
instant case. Therefore, demurrer should have been sustained. Hand v. Kelly, 102 S. C. 151, 
86 S. E. 382. 

Where it is doubtful whether a counterclaim in an action on a contract is on contract or tort, 
it will, under this- Section, be so liberally construed as to be presumed that it was contract, 
where otherwise the counterclaim could not be sustained. Farmers U. Mercantile Co. v. Anderson, 
108 S. C. 66, 93 S. E. 422. 

Under this Section, a complaint attacked by a demurrer must be liberallv construed. Cline v. 
Sou. Ry., 110 S. C. 534, 96 S. E. 532. 

(421) § 5. Striking Out Irrelevant or Redundant Matter and Making 
Indefinite Matter More Definite. — If irrelevant or redundant matter be 
inserted in a pleading, it may be stricken out, on motion of any person ag- 
grieved thereby. And when the allegations of a pleading are so indefinite 
or uncertain that the precise nature of the charge or defense is not ap- 
parent, the Court may require the pleading to be made definite and certain 
by amendment. 

Civ. Pro., '12, § 210; Civ. Pro., '02, § 181; 1870, XIV, § 183. 



156 CODE OF CIVIL PROCEDURE 

"An allegation is irrelevant when the issue formd by its denial can have no connection vyith, 
or effect upon, the cause of action." Pom. Code Rem., § 551; Smith v. Smith, 50 S. C. 54, 
27 S. E. 545; Ragsdale v. Ry. Co., 60 S. C. 381, 38 S. E. 612; Nochols v. Briggs, 18 S. C. 473. 
The remedy is by motion to strike out. Ih. The motion may be vsraived by answering the complaint. 
Allen V. Cooley, 60 S. C. 353, 38 S. E. 627. But the right to makeJ the motion may he reserved 
in the answer. Whaley v. Lawton, 53 S. C. 580, 31 S. E. 660. Under Rule XX of the Circuit 
Court the motion must be noticed before demurring or answering, and within twenty days after 
service of the pleading. Ih. If irrelevant allegations are permitted to remain in the pleading, 
they may be supported by proof. Dent v. R. Co., 61 S. C. 329, 39 S. E. 529. 

if complaint is defective in mode of statement, the remedy is by motion to make allegations 
certain and not by demurrer. Flenniken v. Buchanan, 21 S. C. 434; Sandall v. Insurance Co., 
53 S. C. 241, 31 S. E. 230; Elliott v. Jeter, 59 S C 483, 38 S E. 124; Buist v. Melchers, 44 
S. C. 46, 21 S. E. 449; Garrett v. Wineberg, 50 S. C. 310, 27 S. E. 770; Savage v. Sanders, 51 
S. C. 495, 29 S. E. 248; Long v. Hunter, 48 S. 0. 179, 26 S. E. 228; Marion v. City Council, 
68 S. C. 257, 47 S. E. 140; Morgan v. Sammons, 66 S. C. 389, 44 S. E. 966; Moore v. Power Co., 
68 S. C. 201, 46 S. E. 1004; Caspers v. W. U. Tel. Co., 71 S. C. 31, 50 S. E. 537; Rentz v. South- 
ern Railway, 82 S. C. 170, 63 S. B. 743; Hagood v. Blythe, 38 Fed. 76. Demurrer cannot be 
'.nterposed to one portion of complaint stating only one cause of action. Sloan v. Seaboard, etc., 
R. Co., 64 S. C. 389, 42 S. E. 197. And such motion should be made before trial. Zimmerman v. 
McMakin, 22 S. C. 375. 

If averments of answer are somewhat indefinite and uncertain, the remedy is under this Section 
by motion and not by demurrer. Mobley v. Cureton, 6 S. C. 49 ; Dowie v. Joyner, 25 S. C. 123. 

If description of premises is not sufficiently particular, the objection must be made by motion 
to have it made so. Childers v. Verner, 12 S. C. 1. Motions to have pleadings made definite 
and certain should be made before answer. Bowden v. Winsmith, 11 S. C. 409. If not made 
in due time it is waived. Ih. 

When the complaint fails to state each of several causes of action, separately, it is a 
vice in pleading; but must be remedied by motion to make more definite and certain. Hellams v. 
Switzer, 24 S. C. 39; Westlake v. Farrow, 34 S. 0. 270, 13 S. E. 469. 

If defense and counterclaim are improperly united, motion to make more distinct, and not 
demurrer, is the remedy. McCown v. McSween, 29 S. C. 130, 7 S. E. 45. 

If several notes are sued on as one cause of action, and if the allegation is imperfect or 
informal, such motion, and not demurrer, is the remedy. Holland v. Kemp, 27 S. 0. 623, 

3 S. E. 83. 

If plaintiffs are not sufficiently referred to in complaint, motion to make more definite is 
the remedy. Chapman v. City Council, 28 S. C. 373, 6 S. E. 158. 

Where plaintiff desires to demur to certain defenses, not separately stated, in the answer, he 
may make motion to have pleading made more definite and certain, and then move to strike 
out the irrelevant portions. Buist v. Salvo, 44 S. C. 143, 21 S. E. 615. 

The practice to be followed on motion to make more definite and certain indicated in Long v. 
Hunter, 48 S. C. 179, 26 S. E. 228; Savage v. Sanders, 51 S. C. 495, 29 S. E. 248. 

In action for accounting need not allege with praticularity acts complained of. Sigwald v. 
City Bank, 74 S. C. 473, 477, 55 S. E. 109. 

A pleading cannot be stricken out for indefiniteness. Motion to make more definite and 
certain must be made. Scales Co. v. Long, 66 S. C. 381, 44 S. E. 963, 65 L. R. A. 294; 
Morgan v. Sammons, 66 S. C. 389, 44 S. E. 966. 

Order making complaint more definite and certain overruled. Moore v. Power Co., 68 S. C. 
201, 204, 46 S. E. 1004. Where allegations of new matter in answer are stated in too uncertain, 
ambiguous, inferential manner to determine whether they can avail defendant, remedy is motion 
to make more definite and certain. Pierson v. Green, 69 S. 0. 561, 48 S. E. 624. Allegations 
of complaint sufficiently definite and certain. Hix v. Belton Mills, 69 S. C. 273, 275, 48 
S. E. 96. Where motion made to strike out parts of several causes of action, reference cannot 
be had to causes jointly. Berry v. Moore Co., 69 S. C. 321, 48 S. E. 249. 

Irrelevant and redundant allegations defined. In equity cases, especially those charging fraud, not 
reversible error to refuse to strike out matters directly or remotely relevant. Alexander v. DuBose, 
73 S. C. 21, 52 S. E. 786. 

Allegation irrelevant because merely evidentiary. Pacts in aggravation of damages, though 
evidentiary, are relevant. Notice of motion need not state that movant was aggrieved by 
allegations. Gadsden v. Catawba Power Co., 71 S. C. 340, 51 S. E. 121. 

Motion to make definite and certain should have been granted. Capers v. Western Union Tel. Co., 
71 S. C. 31, 50 S. E. 537. 

Objections to sufficiency of notice of motion, and that motion to make more definite and certain 
and to strike out as irrelevant and redundant could not be heard under one notice, waived 
unless heard and decided by Circuit Judge. Not error to order amended complaint to be served. 
Allegation of specific damages not relevant unless coupled with allegation of notice to carrier of 
special facts causing damages. Guess v. Southern Railway, 73 S. C. 264, 53 S. E. 421. 

Irrelevant and redundant matter cannot be stricken from a complaint by demurrer, but by 
motion to strike out. Guignard v. Baptist Church, 80 S. 0. 498, 61 S. E. 1003. 

There is no reversible error in refusing to strike out parts of an answer which are irrelevant. 
McCandless v. Mobley, 81 S. C. 303, 62 S. E. 260. Rules governing motions to make pleadings 
more definite stated. Hughes v. Orangeburg Mfg. Co., 81 S. C. 354, 62 S. E. 404. 

Remedy for indefiniteness is by motion. Smith v. Bradstreet Co., 63 S. C. 525,' 41 S. E. 763. 
Allegations held not irrelevant. Simmons v. W. U. Tel. Co., 63 S. C. 425, 41 S. E. 521. 

Objection to irrelevant paragraph should be by motion. Sloan v. Seaboard & R. Ry., 64 
S C 389, 42 S. E. 199. Amendment allowed to make allegation more definite. Bell v. 
Floyd, 64 S. C. 246, 42 S. E. 104; Pierson v. Green, 69 S. C. 561, 48 S. E. 624. Irrelevant matter 
stricken out. Watford v. Windam, 64 S. C. 509, 42 S. E. 597. Allegation of punitive damages 
stricken out in claim and delivery proceedings. Tittle v. Kennedy, 71 S. C. 7, 50 S. E. 544, 

4 Am. & Eng. Ann. Cas. 68. An exhibit attached to complaint can be used as a bill of particulars 
to make the allegations of the complaint more certain. Dixon v. Roessler, 70 S. C. 499, 50 
S. E. 184. Motion to elect. Welborn v. Dixon, 70 S. 0. 108, 49 S. E. 232, 3 Am. & Eng. 
Ann. Cas. 407. 

Not error to admit testimonv in support of irrelevant allegations, where there was no motion 
to strike out. Blassingame v. Laurens, 80 S. C. 38, 61 S. E. 96: Mauldin v. Railroad, 73 SO. 
12 52 S. E. 677; Milhouse v. Railway 72 S. C. 442, 52 S. E. 41, 110 Am. St. Rep. 620. 
But it need not be admitted. Bromonia Co. v. Drug Co., 78 S. C. 482, 59 S. E. 363 Complaint 
on contract required to be made more definite and certain. Williams v. Salmond, 79 S. C. 
459, 61 S. E. 79. Order refusing motion is not appealable. Harbert v. A. C. L. Ry., 74 
S. C. 13, 53 S. E. 1001; Dawkins v. Street Ry., 82 S. C. 166, 63 S. E. 746; Miles v. 



OF SOUTH CAROLINA 157 

Charleston Light, etc., Co., 87 S. C. 254, 69 S. E. 292; "Woodward v. "Woodward, 87 S. C. 
247 69 S E 232. See, also, Epstein v. Berman, 78 S. C. 327, 58 S. E. 1013; McCandless v. 
Mob'ley, 81 S. C. 303, 62 S. E. 260. "Wood ■;;. Pacolet Mfg. Co., 80 S. C. 51, 61 S. E. 95. 

Motion refused. Shaver v. Grendel Mills, 74 S. C. 430, 54 S. E. 610; Lyles v. Kinard, 82 
S. C. 415, 64 S. E. 409. . 

Rule to show cause why complaint should not be made definite and certain is just as effective 
as motion. Bank v. Fidelity, etc., Co., 120 Fed. 315. 

Defendant cannot object to proof of an offer of subrogation as immaterial, where complaint 
alleged such fact and defendant did not move to strike out allegation. Pelzer Mfg. Co., v. 
St. Paul, etc., Ins. Co., 41 Fed. 271. 

Right to demur not waived by motion to make more definite and certain. Lawrence v. 
Lawrence, 81 S. C. 126, 62 S. E. 9. 

An allegation in an answer that the defendant carrier delivered goods in accordance with 
directions from consignee, is relevant in an action against the carrier for conversion of such 
goods. Lumber Co. v. Sou. Ry. Co., 100 S. C. 415, 84 S. E. 994. 

Statements in an answer about the transaction alleged in the complaint, and inconsistent 
with such allegations, may be relevant as constituting a defense. Ibid. 

Striking out, as redundant, a plea of facts which might be shown under a general denial 
in the same answer, is not prejudicial error. Ibid. 

(422) § 6. Judgment — How to Be Pleaded. — In pleading a judgment, 
or other determination of a Court or officer of special jurisdiction, it shall 
not be necessary to state the facts conferring jurisdiction, but such judg- 
ment or determination may be stated to have been duly given or made. If 
such allegation be controverted, the party pleading shall be bound to estab- 
lish on the trial the facts conferring jurisdiction. 

Civ. Pro., '12, § 211 ; Civ. Pro., '02, § 182 ; 1870, XIV, § 184. 

(423) § 7. Conditions Precedent — How to Be Pleaded. — In pleading 
the performance of conditions precedent in a contract, it shall not be nec- 
essary to state the facts sho"wing such performance; but it may be stated 
generally that the party duly performed all the conditions on his part ; and 
if such allegation be controverted, the party pleading shall be bound to 
establish, on the trial, the facts showing such performance. In an action or 
defense founded upon an instrument for the payment of money, it shall 
be sufficient for a party to give a copy of the instrument, and to state 
that there is due to him thereon from the adverse party a specified sum, 
■which he claims. 

Civ. Pro., '12, § 212 ; Civ. Pro., '02, § 183 ; 1870, XIV, § 185. 

Complaint against makers of a note held sufficient under this section. "Watson v. Barr, 3'i 
S. C. 466, 16 S. E. 188. "Waiver of performance of condition precedent. Griffith v. Newell, 
69 S. C. 303, 48 S. E. 259. Performance of conditions precedent must be alleged. Peterman v. 
Pope, 74 S. C. 298, 54 S. E. 569. Alleging performance, Hollins v. Bankers Union, 63 S. 0. 
196, 41 S. E. 90; Merchants and Planters Bank v. Blacksburg Knitting Mills, 71 S. C. 527, 
51 S. E. 274. 

Complaint in suit on fidelity insurance bond. Bank v. Fidelity, etc., Co., 120 Fed. 315. 

"Waiver of condition precedent in mutual dependent contract must be pled if relied on. 
Griffith v. Newell, 69 S. C. 300, 48 S. E. 259, distinguishing Copeland v. Assurance Co., 43 
S. C. 26. 

(424) § 8. Private Statutes — How to Be Pleaded. — In pleading a pri- 
vate statute, or a right derived therefrom, it shall be sufficient to refer to 
such statute by its title and the day of its passage, and the Court shall 
thereupon take judicial notice thereof. 

Civ. Pro., '12, § 213; Civ. Pro., '02, § 184; 1870, XIV, § 186. 

Referred to in "White v. R. R. Co., 14 S. C. 51. 

(425) § 9. Libel and Slander — How Stated in Complaint. — In an 

action for libel or slander, it shall not be necessary to state, in the com- 
plaint, any extrinsic facts, for the purpose of sho"wing the application to 
the plaintiff of the defamatory matter out of "which the cause of action 
arose; but it shall be sufficient to state generally that the same was pub- 
lished or spoken concerning the plaintiff; and if such allegation be eon- 



158 CODE OF CIVIL PROCEDURE 

troverted the plaintiff shall be bound to establish, on trial, that it was so 
published or spoken. 

Civ. Pro., '12, § 214; Civ. Pro., '02, § 185; 1870, XIV, § 187. 

An allegation that defendant at a certain time and place, slandered plaintiff, by saying that 
he had sworn lies at a certain time and place, and in a named cause, states facts sufficient. 
Zimmerman v. McMakin, 22 S. C. 3T6. And where the words of slander proved at trial are 
not the same as, but similar to those alleged, it is for the jury to say whether they meant the 
same. lb. 

This Section does not obviate the necessity of setting out facts which make language, not in 
itself defamatory, have that import. Hubbard v. Furman University, 76 S. C. 511, 57 S. E. 478. 

(426) § 10. Answer in Such Cases. — In the action mentioned in the 
last Section, the defendant may, in his answer, allege both the truth of the 
matter charged as defamatory, and any mitigating circumstances, to re- 
duce the amount of damages; and, whether he prove the justification or 
not, he may give, in evidence, the mitigating circumstances. 

Civ. Pro.., '12, § 215 ; Civ. Pro., '02, § 186 ; 1870, XIV, § 188. 

It may be that defendant can introduce evidence to show his belief in the truth of the 
charge made, in mitigation of damages. Finch i'. Finch, 21 S. C. 342. 

Matter in mitigation of damages should be pleaded. Latimer v. York Cotton Mills, 66 S. C. 
138, 44 S. E. 559. Whether defendant sustain his plea of justification, the jury may consider 
the evidence of mitigating circumstances. Burckhalter v. Coward, 16 S. C. 439. 

Construed. Machen v. Western Union Tel. Co., 72 S. C. 257, 51 S. E. 697. 

(427) § 11. Pleading in Actions Ex Delicto for Damages Regulated. 

— In all actions ex delicto in which vindictive, punitive or exemplary dam- 
ages are claimed in the complaint, it shall be proper for the party to recover 
also his actual damages sustained, and no party shall be required to make 
any separate statement in the complaint in such action, nor shall any party 
be required to elect whether he will go to trial for actual or other dam- 
ages, but shall be entitled to submit his whole case to the jury under the 
instruction of the Court. 

How Two OR More Causes of Action for Damages May Be Pleaded. 
— In all cases where two or more acts of negligence or other wrongs are 
set forth in the complaint, as causing or contributing to the injury, for 
which such suit is brought, the party plaintiff in such suit shall not be 
required to state such several acts separately, nor shall such party be re- 
quired to elect upon which he will go to trial, but shall be entitled to submit 
his whole case to the jury under the instruction of the Court and to recover 
such damages as he has sustained, whether such damages arose from one or 
another or all of such acts or wrongs alleged in the complaint. 

Civ. Pro., '12, § 216 ; Civ. Pro., '02, § 186a ; 1898, XXII, 693. 

Glover v. Railway Co., 57 S. C. 224, 35 S. E. 510; Mew v. Ry. Co., 55 S. C. 90, 32 S. E. 
828: Bowen r. Rv. Co.. 58 S. C. 222, 36 S. E. 590: Proctor v. Southern Ry. Co., 61 S. C. 
170, 39 S. E. 351; Appleby v. Southern Ry. Co., 60 S. C. 48, 38 S. E. 240; Sloan v. 
Seaboard, etc., R. Co., 64 S. C. 389, 42 S. E. 197; Young v. Western Union Tel. Co., 65 
S. C. 93, 43 S. E. 448. Two or more acts of negligence may be alleged as contributing to injury 
in one cause of action. Sloan v. Seaboard & R. Ry. Co., 64 S. C. 389, 42 S. E. 197; Griiifin v. 
Southern Railway, 65 S. C. 122, 43 S. E. 445. Actions for negligence and wilful torts may be 
joined where proper allegations are made. Proctor v. Southern Railway, 64 S. C. 491, 42 S. E. 
427: Boggero v. Southern Railwav, 64 S. C. 104, 41 S. E. 819; Bodin v. Southern R. Co., 65 
S. C. 226, 43 S. E. 665; Stembridge v. Southern Railway, 65 S. C. 440, 442, 43 S. E. 968. 

It is unnecessary to separate allegations as to actual and e.xemplary damages. Machen v. 
W. U. Tel. Co., 63 S. C. 363, 41 S. E. 448; Butler v. Same, 62 S. C. 222, 40 S. E. 162. 

Under this Section acts of negligence and acts of wilful tort may iDe commingled in one 
statement in the complaint, as causing the injury, and the adverse party cannot require a 
separate statement of such acts of negligence, nor an election upon which plaintiff will go to trial. 
Schumpert v. Southern Railway, 65 S. C. 335, 43 S. E. 813, 95 Am. St. Rep. 802. 

A plaintiff may allege an act as negligence and as wilful, and he may allege all facts going 
to make up the history of his alleged wrongs. DuPre v. Southern Railway, 66 S. C. 124, 44 S. E. 
580. 

Punitive damages not recoverable in claim and delivery. Tittle v. Kennedy, 71 S. C. 1, 50 
S. E. 544. 

Notice of appeal from refusal to strike allegations of one cause of action not supersedeas. 
Bonner v. Western Union Tel. Co., 71 S. C. 306, 51 S. E. 117. 



OF SOUTH CAROLINA 159 

Election of remedies does not applv in action based on complaint stating two separate and dis- 
tinct causes of action. Barfleld v. Cokev & Co., 73 S. C. 181, 53 S. E. 170. 

Plaintiff not compellable to elect on which cause of action to go to trial. Rountree v. Atlantic 
Coast Line R. R. 73 S. C. 272, 53 S. E. 424. 

See Gwvnn v. Citizens Tel. Co., 69 S. C. 443, 48 S. E. 460, 104 Am. St. Rep. 819, 67 
L. R. A. ill; Smith v. Gilreath, 69 S. C. 355, 48 S. E. 262; Morrow v. Gaffney Mfg. Co., 70 
S. C. 245, 49 S. E. 573. 

"Jumbling" action permitted. Bonner v. Western Union Tel. Co., 71 S. C. 303, 51 S. E. 117; 
Taber v. S. A. L. Railway, 81 S. C. 317, 62 S. E. 311; Lynch v. Spartan Mills, 66 S. C. 16, 
44 S. E. 93 ; Steedman v. S. C. & G. Ry., 66 S. C. 542, 45 S. E. 84. Of several grounds of 
negligence alleged, proof of one is sufficient. Cain v. A. C. L. R. Co., 74 S. C. 89, 54 S. E. 244. 
Jumbling actual and punitive damages. Machen v. Telegraph Co., 72 S. C. 261, 51 S. E. 697. 
Two or more acts of wrong causing injury stated as separate causes of action in same complaint. 
Barfield v. Coker, 73 S. C. 188, 53 S. E. 170. Verdict sustained where supported by proof as to 
either cause of action. Compensatory damages recoverable for unintentional trespass. Wood v. 
Pacolet Mfg Co., 80 S. C. 49, 61 S. E. 95. For review of cases and construction of this 
Section, see Machen r. Telegraph Co., 72 S. C. 261, 51 S. E. 697. 

Cause of action for trespass for illegally distraining for rent and one for excessive distress 
may be jumbled in one cause of action and so tried. Jones v. McCreery Land, etc., Co., 82 
S. C. 456, 64 S. E. 225. 

In action ex delicto by passenger against carrier, pleader may jumble together in one cause 
of action several acts of negligence, whether they all occurred in this State or not. Taber v. 
Seaboard Air Line Railway, 81 S. C. 317, 62 S. E. 311. 

This act gives plaintiff right to allege in her complaint acts of negligence at common law as 
well as those arising under statute. Cooper v. Charleston, etc., R. Co., 65 S. C. 214, 218, 43 
S. E. 682. 

Plaintiff is not required to allege amount of punitive damages claimed. Stembridge v. 
Southern Railway, 65 S. C. 440, 43 S. E. 968. 

Nonsuit cannot be granted unless there is failure of testimony to sustain all acts of wrong 
set out in cause of action. Griffin v. Southern Railway, 65 S. C. 122, 126, 43 S. E. 445. 

Order requiring plaintiff to separate all acts of negligence and other wrongs stated in one 
cause of action so as to allege what acts are charged as negligent and what as wanton, etc., is 
appealable. Bolin v. Southern R. Co., 65 S. C. 222, 43 S. E. 665. 

Under this section plaintiff may allege two or more acts of trespass which caused or con- 
tributed to his injury without stating them separately. Wichman v. Scarpa, 101 S. C. 437, 85 
S. E, 1061. 

It is not abuse of discretion to strike out irrelevant matter from a complaint containing 
allegations appropriate to a cause of action in contract and one based on deceit, where it is 
not indicated on which he relies or whether he relies upon the fact that the complaint contains 
two causes of action. Mikell v. McCreery-Pressly Co., 105 S. C. 25, 89 S. E. 467. 

All allegations not appropriate to a cause of action relied on are superfluous and should, on 
motion, be stricken. Ibid. 

A judgment in a mental anguish cause of action, under the statute is res judicata so far as 
any subsequent action brought under the common law for wilful failure to deliver a telegram, 
as the same transaction may not be split into several suits. Greer v. Telegraph Co., 105 
S. C. 147, 89 S. E. 782. 

Where a purchaser of timber damaged the land not sold while cutting timber, by wilful 
and reckless disregard of the vendor's rights, only one cause of action, and not two causes of 
action for actual and punitive damages respectively, arose. 

(428) § 12. Pleadings of Counterclaim by Defendant in Action in 
Tort. — In all actions sounding in tort the defendant shall have the right 
to plead a similar cause of action against the plaintiff by way of counter- 
claim: Provided, That the cause of action of the plaintiff and defendant 
arise out of the same state of facts. 

1920, XXXI, 748. 

(429) § 13. Answers in Actions to Recover Property Distrained for 
Damage. — In action to recover the possession of property distrained 
doing damage, an answer that the defendant, or person by whose command 
he acted, was lawfully possessed of the real property upon which the dis- 
tress was made, and that the property distrained was at the time doing 
damage thereon, shall be good without setting forth the title t'o such real 
property. 

Civ. Pro., '12, § 217; Civ. Pro., '02, § 187; 1870, XIV, § 189. 

(430) § 14. What Causes of Action May Be Joined.— The plaintiff 
may unite, in the same complaint, several causes of action, whether they 
be such as have been heretofore denominated legal or equitable, or both, 
where they all arise out of: 

1. The same transaction, or transactions connected with the same subject 
of action ; or. 



160 CODE OF CIVIL PROCEDURE 

2. Contract, express or implied; or, 

3. Injuries with or without force, to person and property, or either ; or, 

4. Injuries to character; or, 

5. Claims to recover real property, with or without damages for the with- 
holding thereof, and the rents and profits of the same ; or. 

Chamberlain v. Mensing, 51 Fed. 511. 

6. Claims to recover personal property, with or without damages for the 
withholding thereof , or, 

7. Claims against a trustee, by virtue of a contract, or by operation of 
law. 

But the causes of action, so united, must all belong to one of these classes, 
and, except in actions for the foreclosure of mortgages, must affect all the 
parties to the action, and not require different places of trial, and must be 
separately stated. In actions to foreclose mortgages, the Court shall have 
power to adjudge and direct the payment by the mortgagor of any residue 
of the mortgage debt that may remain unsatisfied after a sale of the 
mortgaged premises in cases in which the mortgagor shall be personally 
liable for the debt secured by such mortgage.; and if the mortgage debt be 
secured by the covenant or obligation of any person other than the mort- 
gagor, the plaintiff may make such person a party to the action, and' the 
Court may adjudge payment of the residue of such debt remaining unsat- 
isfied after a sale of the mortgaged premises against such other person, and 
may enforce such judgment as in other cases. 

1870, XIV, § 190. 

Rendering Judgment and Order Sale at Same Time — Judgment to Be 
Credited. — The Court shall also have the power to render judgment against 
the parties liable for the payment of the debt secured by the mortgage and 
to direct at the same time the sale of the mortgaged premises. The said 
judgment so rendered may be entered and docketed in the Clerk's office 
in the same manner as other judgments. Upon sale of the mortgaged prem- 
ises, the officer making the sale under the order of the Court shall credit 
upon the judgment so rendered for the debt the amount or amounts paid to 
the plaintiff from the proceeds of the sale. 

1894, XXI, 816, § 2. 

Parties in Action for Strict Foreclosure and Sale. — But it shall not 
be necessary to make the personal representative of a deceased mortgagor 
a party to any foreclosure proceeding; nor in any foreclosure proceed- 
ing (if the mortgagor be dead) shall it be necessary to first establish the 
debt by the judgment of some Court of competent jurisdiction in order 
to obtain a decree of foreclosure and sale ; nor shall it be "necessary to make 
the mortgagor who may have conveyed the mortgaged premises a party to 
any action for foreclosure where no judgment for any deficiency is de- 
manded. 

Civ. Pro., '12, § 218 ; Civ. Pro., '02, § 188 ; 1900, XXIII, 349. 

Erskine v. Markham, 84 S. C. 267, 269, 66 S. E. 286; Jenkins v. Atlantic Coast Line R. 
Co., 84 S. C. 343, 356, 66 S. E. 409. 

There is a limit to this union of causes of action. Hellams v. Switzer, 24 S. C. 39. To be a 
cause of action the matter must be stated in a separate and distinct division of the complaint, 
in such manner that each division alone might be the subject of an independent action. lb.; 
Hammond v. R. R., 15 S. C. 10. Such failure to so state each cause of action separately is a 



OF SOUTH CAROLINA 161 

vice in pleading, but only to be remedied by motion to make more definite and certain. Ilellams v. 
Switzer, 24 S. C. 39. 

Action against administrators, their sureties and personal representatives, for account and 
settlement of the estate of intestate, which made a party defendant, who was alleged to claim the 
land of the intestate, was held to be multifarious as to that party. Suber v. Allen, 13 S. C. 317. 

A bill seeking settlement of all matters growing' out of an estate is not multifarious. Tucker v. 
Tucker, 13 S. C. 318. There is no misjoinder where, under a bill to marshall assets, two of 
the defendants claim different tracts of land. Barret v. Watts, 13 S. C. 441. Nor where a 
single action is brought upon a note and account against a corporation and its directors, who 
are jointly and severally liable therefor. Sullivan v. Sullivan, 14 S. C. 494. 

Survivor and representative of surviving partner can be joined as defendants. Wiesenfleld v. 
Byrd, 17 S. C. 106. Causes of action on single bill, promissory note and money account may 
be joined. Cureton v. Stokes, 20 S. C. 582, 

Two or more demands for relief is not a misjoinder. Emory v. Hazard Co., 22 S. C. 476. 

Action for partition among remaindermen and for account of estate of life tenant is a 
misjoinder. Shanks v. Mills, 25 S. C. 358. 

A joint trespass bv two and continued by one cannot be sued together. Himes v. Jarrett. 
26 S. C. 480, 2 S. E. 393. 

Joint action by four wards against their guardian is not multifarious. Stallings v. Barrett, 26 
S. C. 474, 2 S. E. 483. 

Claim of heirs to land descended, and as distributees, to an accounting cannot be joined. 
Rush V. Warren, 26 S. C. 72, 1 S. E. 363. But complaint being dismissed as to land, it was 
properly retained as to accounting. lb. 

Demurrer for misjoinder is bad if one cause is imperfectly pleaded. Machine Co. v. Wrav, 28 
S. C. 86, 5 S. E. 603. 

Plaintiff may join suit on note, with claim to set aside fradulent transactions of his debtor, 
and failing in last may have judgment for his debt. Magruder v. Clayton, 29 S. C. 407, 7 S. E. 844. 

As to judgment for balance due after sale of mortgaged premises. Wagener v. Swygert, 30 S. 
0. 296, 9 S. E. 107. 

Doubted whether two causes of action, one for partition and the other for recovery of real 
estate, can be joined. Weslake v. Farrow, 34 S. C. 270, 13 S. E. 469. 

Action for specific performance of contract to devise or for value of services rendered under 
such contract is not an improper joinder of actions. Scoggins v. Smith, 31 S. C. 605, 9 S. 
E. 971. 

Action of partner against devisee of copartner in possession of the land alleging that it was 
partnership property and demanding reconveyance or sale and division of proceeds did not 
improperly join several causes of action. Jones v. Smith, 31 S. C. 527, 10 S. E. 340. 

Plaintiff may join in same complaint an action against an association for illegally receiving his 
money, with an action against a bank for illegally paying it out. Both causes of action arising 
out of the same transaction. Pollock v. Building & Loan Ass'n., 48 S. C. 65, 25 S. E. 977. 

Where several causes of action are separately stated in the same complaint, plaintiff cannot be 
required to elect which shall be &cst tried, or that they be separatelv tried. Ross v. Jones, 47 
S. C. 211, 25 S. E. 60. 

An action for damages from a tort for an injunction against the continuance of the tort, 
seeking two different modes of relief, states but one cause of action. Threatt v. Mining Co., 49 
S. C. 95, 26 S. E. 983. So also a complaint for dower against more than one defendant in 
possession of different tracts of land aliened by the husband in one tract, states but one cause of 
action. Bostick v. Barnes, 59 S. C. 22, 37 S. E. 24. After Act of 1900, an order requiring 
personal representative of mortgagor made a party defendant was properlv vacated. Peeples v. 
Mims, 64 S. C. 226, 42 S. E. 155; Glenn v. Gerald, 64 S. C. 236, 42 S. E. 156. Where no 
judgment for deficiency is sought against personal representative suit for foreclosure may be 
brought within year. Green v. McCarter, 64 S. C. 290, 42 S. E. 159. Mortgagor having conveyed, 
not necessary party. Greenwood Loan and Guarantee Ass'n. v. Williams, 71 S. C. 424, 51 S. E. 272. 

Under this section, an administrator whose intestate died from injuries negligently caused, 
cannot unite in a single action against the tort feasor, a cause of action surviving to him 
for the damages suffered by his intestate with a cause of action under Lord Campbell's Act for 
the benefit of the kin of said intestate ; since the real parties plaintiff in interest and the elements 
of damages recoverable in the two causes of action are different. Bennett v. Ry. Co., 97 
S. C. 27, 81 S. E. 189. 

Under this Section, a cause of action on an account stated may be joined in same complaint 
with a cause of action on an open account arising out of the same transactions, and a motion 
to strike out the cause of action on the account stated is properly refused. Gwathney v. 
Burgis, 98 S. C. 152, 82 S. E. 394. 

In an action on an open account, plaintiff must prove each item, and cannot recover interest ex- 
cept by express agreement, while, in an action on an account stated, he may recover upon proof 
that defendant agreed to the account as stated; hence a third cause of action on an account stated, 
based on practically the same facts alleged in the first two causes of action, will not be 
stricken out on the ground of redundancy. Ibid. 

Under this section, a Court may in one decree give judgment for the amount due on a 
mortgage and also direct a sale of the mortgaged property. Barron v. Sou. Scale & P. Co., 
106 S. C. 342, 91 S. E. 321. 

Where a complaint alleged that the plaintiff deposited his baggage with the joint agent 
of two defendants and received a parcels check therefor, which he afterwards exchanged for 
a baggage check upon becoming a passenger on the train of one of the defendants, and his 
baggage when finally delivered to him at destination was found to have some articles missing, 
held that the cause of action " against the two companies for the actual loss and penalty for 
failure to pay the claim within the prescribed time was improper joinder, inasmuch as only 
one of the defendants could possibly be liable for the penalty claimed. Darby v. Sou. Ry., 108 
S. C. 145, 93 S. E. 716. 

Cause of action for fradulent breach of contract and for fradulent procurement of the same 
contract arise out of the same transaction, and are properly united under the provisions of this 
Section. Cline v. Sou. Ry. Co., 110 S. C. 534, 96 S. E. 532. 

A complaint alleging goods sold and delivered to the defendants as partners, and alleging 
goods sold to one defendant to be used in a building being constructed by the two defendants, 
relate to the same transaction and state causes of action in both of which both defendants are 
interested, therefore, is a proper joinder. Lorick & Lowrance, Inc. v. Hesler, 112 S. C. 
375, 99 S. E. 835. 

12 C C P 



162 CODE OF CIVIL PROCEDURE 

(431) § 15. Allegation Not Denied — When to Be Deemed True. — 

Every material allegation of the complaint, not controverted by the answer, 
as prescribed in Section 410, and every material allegation of new matter 
in the answer, constituting a counterclaim, not controverted by the reply, 
as prescribed in Section 414, shall, for the purposes of the action, be taken 
as true. But the allegation of new matter in the answer, not relating to a 
counterclaim, or of new matter in a reply, is to be deemed controverted by 
the adverse party as upon a direct denial or avoidance, as the case may 
require. 

Civ. Pro., '12, § 219 ; Civ. Pro., '02, § 189 ; 1870, XIV, § 191. 

Material allegations in a special proceeding not controverted by answer are taken to be true. 
Oolumbia Co. v. Columbia, 4 S. C. 388. 

Allegations of complaint not controverted are to be taken as true. Lupo v. True, 16 S. C. 
579. The only effect of an answer that is not responsive to the complaint is that the complaint so 
far stands admitted. Zimmerman v. Amaker, 10 S. C. 98. 

New matters stated in reply are deemed to be controverted. Gravely v. Gravely, 20 S. C. 93. 
So are new matters stated in answer. Hubbell v. Courtney, 5 S. C. 85 ; Geiger v. Kaigler, 15 
S. C. 262: Simpson v. Ins. Co.. 59 S. C. 195, 37 S. E. 18; Bank v. Gadsden, 56 S. C. 313, 33 
S. E. 575. But that of counterclaim is not deemed controverted without reply. Hubbell v. 
Courtney, 5 S. C. 87. 

An answer setting up defenses, other than counterclaim, not set aside on demurrer is left 
still as controverting the complaint by direct denial or avoidance. Mobley v. Cureton, 6 S. C. 49. 
Answer admitting complaint, but stating sufficient new matter in avoidance, is deemed to be 
controverted, and is good. Hughey v. Kellar, 34 S. C. 268, 13 S. E. 475. 

An allegation of his corporate existence is no part of plaintiff's cause of action, and is not 
put in issue by general denial. Insurance Co., v. Turner, 8 S. C. Ill; Steamship Co. v. Rodgers, 
21 S C. 33; Palmetto Co. v. Risley, 25 S. C. 309; American Co. v. Hill, 27 S. 0. 164, 3 S. E. 
82; Rembert v. Railroad, 31 S. C. 309, 9 S. E. 968; Land Co. v. Williams, 35 S. C. 367, 14 
S. E. 821. 

Failure to deny is such admission of plaintiff's case as to allow defendant to open and reply. 
Addison v. Duncan, 35 S. C. 165, 14 S. E. 305. 

New matter in answer deemed denied. Frasier v. Charleston & Western Carolina Railroad, 
73 S. C. 143, 52 S. E. 964. 

That a witness testified to an allegation in an answer did not have effect of admitting it, and 
was properly sent to the jury. Brooke v. Hill, 65 S. C. 147, 48 S. E. 390. 

Allegations of complaint not denied in answer are admitted. Gin Co. v. Coxmts, 98 S. C. 136, 
82 S. E. 391. : 

Allegations of complaint which are not denied in the answer must be taken as true under this 
Section. Wilson v. Burriss, 113 S. C. 474, 101 S. E. 820. 

A denial of information sufficient to form a belief as to an allegation that payee of the past 
due note is owner thereof, held properly stricken out in all answers by the makers, in an action 
thereon, as a sham defense; where the admitted correspondence between the parties shows the 
makers had full information after maturitv of the note that the payee held same and intended 
to enforce the payment. Bank of Johnson v. Fripp, 101 S. C. 185, 85 S. E. 1070. 



(432) 



CHAPTER VI. 

Mistakes in Pleading's and Amendments. 

1. Material Variances. — No variance between the alle- 
gation in a pleading and the proof shall, be deemed material unless it 
have actually misled the adverse party, to his prejudice, in maintaining 
his action or defense, upon the merits. Whenever it shall be alleged that 
a party has been so misled, that fact shall be proved to the satisfaction of 
the Court, and in what respect he has been misled; and thereupon the 
Court may order the pleading to be amended, upon such terms as shall 
be just. 

Civ. Pro., '12, § 220; Civ. Pro., '02, § 190; 1870, XIV, § 192. 

The provisions of this Chapter do not seem to give a Circuit Judge greater power than that 
which was formerly exercised by the Chancellors in this State. Coleman v. Heller, 13 S. C. 491. 

Sevier v. Southern Railway, 82 S. C. 311, 64 S. E. 390. 

This Section applies to trials in actions pending when the Code was adopted. Ahrens v. 
Bank, 3 S. C. 401. Nonsuit cannot be granted for variance between the allegations and the 
proof ; the only remedy is by amendment upon such terms as shall be just, and for this the 
party must satisfy the Court, by affidavit, that he has been misled, and in what respect. lb.; 
State V. Scheper, 33 S. C. 562, 11 S. E. 623. Unless the party prejudiced has actually been misled, 
he has no rights under this Section. Hammond v. R. R. Co., 6 S. C. 130; Mew v. C. & S. Ry. Co., 
55 S. C. 90, 32 S. E. 829. Judgment may be rendered on account stated, although no allegation 
of account stated was made. Sloan v. Westfield, 17 S. C. 589. 



OF SOUTH CAROLINA 163 

Amendment during trial to conform to proof allowed. Adams v. Railroad Co., 68 S. C. 410, 
47 S. E. 693. 

Amendment hereunder is proper if variation between proof and allegations are material. 
Devlin v. Railway, 79 S. C. 472, 60 S. E. 1123. 

Construed. Roundtree v. Charleston and Western Carolina R. Co., 72 S. C. 474, 52 S. E. 231; 
Jackson v. Southern Cotton Oil Co., 81 S. C. 566, 62 S. E. 854. 

A circuit Judge during trial may permit a complaint amended by inserting words changing 
the cause of action, if he withdraw the case from the jury, if the amendment take defendant 
by surprise, and permit defendant to answer. Hewlett v. R. R. Co., 93 S. C. 76, 76 S. E. 32. 

Where in a suit on a note the action is brought in the name of one corporation, whose assets 
are taken over and its name changed, the plaintiff should not be nonsuited, but should be 
permitted to amend its complaint by substituting the last corporation. Savings Bank v. Efird, 
96 S. C. 18, 79 S. E. 637. 

A variance between the allegations of the complaint and proof may be cured by amendment 
under this Section, and is not ground for nonsuit, unless the defendant has been misled thereby. 
Moore v. Oil Co., 100 S. C. 500, 85 S. E. 52. 

Complaint alleging an employee was injured in a collision between two cars by the negligence 
of the employer, and the proof showing that the cars came so close together as to injure plaintiff, 
is not a material variance under this Section. Pool v. Traction Co., 101 S. C. 387, 85 S. E. 897. 

In an^ action_ against a railroad company for personal injury, where the defendant, under 
the pleadings, might have shown as a complete defense that plaintiff was injured in a different way 
than that alleged, the allowance of an amendment to the complaint so as to conform to the proof 
and allege a new and independent act of negligence, to defendant's surprise, was error. 
Scott V. A. C. L. R. R. Co., 105 S. C. 385, 89 S. E. 1038. 

(433) § 2. Immaterial Variances. — Where the variance is not mate- 
rial, as provided in the last Section, the Court may direct the fact to be 
found according to the evidence, or may order an immediate amendment 
without costs. 

Civ. Pro., '12, § 221; Civ. Pro., '02, § 191; 1S70, XIV, § 193. 

In all immaterial variances the Court may disregard them and direct a verdict according to the 
evidence or order immediate amendment. Ahrens v. Bank, 3 S. C. 401. 

Such amendment is to conform to the pleadings to the facts proven, and may be made in- 
formally, sometimes orally, or by the Court of its own motion. Chichester v. Hastie, 9 S. C. 330. 

Construed. Roundtree v. Charleston and Western Carolina R. Co., 72 S. C. 474, 52 S. E. 231. 

See notes under Section 432. 

(434) § 3. What Not to Be Deemed a Variance. — Where, however, 
the allegation of the causes of action or defense to which the proof is 
directed is not proved, not in some particular or particulars only, but in 
its entire scope and meaning, it shall not be deemed a case of variance 
within the last two Sections, but a failure of proof. 

Civ. Pro., '12, § 222 ; Civ. Pro,, '02, § 192 ; 1870, XIV, § 194. 

This failure of proof warrants a nonsuit. Ahrens v. Bank, 3 S. C. 401. 

Construed. Roundtree v. Charleston and Western Carolina R. Co., 72 S. C. 474, 52 S. E. 231. 

See notes under Section 432. 

(435) § 4. Amendments of Course, and After Demurrer. — Any plead- 
ing may be once amended by the party of course, without costs, and without 
prejudice to the proceedings already had, at any time within twenty 
days after it is served, or at any time before the period for answering it 
expires ; or it can be so amended at any time within twenty days after the 
service of the answer or demurrer to such pleading, unless it be made to 
appear to the Court that it was done for the purpose of delay, and the 
plaintiff or defendant will thereby lose the benefit of a circuit or term 
for which the cause is or may be docketed ; and if it appear to the Court 
that such amendment was made for such purpose, the same may be 
stricken out, and such terms imposed as to the Court may seem just. In 
such case a copy of the amended pleading must be served on the adverse 
party. After the decision of a demurrer, the Court shall, unless it appear 
that the demurrer was interposed in bad faith, or for purposes of delay, 
allow the party to plead over upon such terms as may be just. If the 
demurrer be allowed for the cause mentioned in the fifth subdivision of 
Section 401, the Court may, in its discretion, and upon such terms as may 



164 CODE OF CIVIL PROCEDURE 

be just, order the action to be divided into as many actions as may be 
necessary to the proper determination of the causes of action therein 
mentioned. 

Civ. Pro., '12, § 223; Civ. Pro., '02, § 193; 1870, XIV, § 195. 

The allowance of voluntary amendment, it seems, does not allow a wholly different cause of 
action to be substituted in place of original one. Sullivan v. Sullivan, 24 S. 0. 474. 

Facts occurring since commencement of action cannot be alleged as amendments in the original 
complaint ; they can only be brought before the Court by supplementary complaint. McCaslan v. 
Latimer, 17 S. C. 123. 

Permission to answer over cannot be claimed as a right; it rests in the discretion of the 
Judge, and he may grant such relief upon payment of costs. R. R. Co. v. White, 14 S. 0. 51; 
Lowry v. Jackson, 27 S. C. .318, 3 S. E. 473. Or without payment of costs. Stallings v. Barrett, 
26 S. C. 474, 2 S. E. 483. 

When Judge properly overruled demurrer made for several causes, and required defendant 
to answer over by a given time, he acted within authority herein conferred. Oureton v. Stokes, 
20 S. C. 582. When demurrer is taken in good faith, the Court in overruling it should allow de- 
fendant to answer. The New Co. v. Wray, 28 S. C. 86, 5 S. E. 603. The plaintiff's right 
to amend as of course may be waived by motion for leave to amend; the granting of which 
is discretionary. Hamilton v. Carrington, 41 S. C. 385, 19 S. E. 616. 

See, also, Simms v. Ry. Co., 56 S. C. 30, 33 S. E. 746. 

Applied in Williams v. Newton, 82 S. C. 227, 64 S. E. 219. 

Leave to amend properly granted. Kentucky Refining Co. v. Saluda Oil Mill Co., 70 S. C. 94, 
48 S. E. 987. 

rhe limitation of right to amend applies onlv during or after trial; not to amendments of 
course, before trial. McDaniel v. Monroe Bros., 63 S. C. 307, 41 S. E. 456. 

Amendment as of course. Knight, Yancey & Co. v. ^tna Cotton Mills, 80 S. C. 215, 61 S. B. 
396. 

(436) § 5. Amendments by the Court. — The Court may, before or 
after judgment, in furtherance of justice, and on such terms as may be 
proper, amend any pleading, process, or proceeding, by adding or strik- 
ing out the name of any party ; or by correcting a mistake in the name of 
a party, or a mistake in any other respect ; or by inserting other allega- 
tions material to the case ; or, when the amendment does not change sub- 
stantially the claim or defense, by conforming the pleading or proceeding 
to the facts proved. 

Civ. Pro., '12, § 224 ; Civ. Pro., '02, § 194 ; 1870, XIV, § 196. 

The power of amendment herein is limited to the amendments of the character specified; it 
is intended only to perfect a proceeding in which the party has been successful, and not when 
he has lost his cause; and not to be used as a means to obtain a new trial on a new cause after 
the case has been lost on the original cause of action. Kennerty v. Etiwan Co., 21 S. C. 226; 
Whaley v. Stevens, 21 S. C. 221; Hall v. Woodward, 30 S. C. 564, 9 S. E. 684; Clayton v.' 
Mitchell, 31 S. C. 199, 9 S. E. 814. This limitation, however, applies only during or after trial. 
Mason v. Johnson, 13 S. C. 21; Cleveland v. Cohrs, 13 S. C. 397; Trumbo v. Pinley, 18 S. C. 
316; Dunsford v. Brown, 19 S. C. 567; Nesbitt v. Cavender, 27 S. C. 1, 2 S. E. 702; Hall v. 
Woodward, 30 S. C. 564, 9 S. E. 684; Edwards v. Railroad Co., 32 S. C. 117, 10 S. E. 822; 
Lilly V. Railroad Co., 32 S. C. 142, 10 S. E. 932; Kennedy v. Hill, 79 S. C. 272, 60 S. E. 689; 
Taylor v. A. C. L. R. Co., 81 S. C. 574, 62 S. E. 1113; German-American Ins. Co. v. Southern 
Railway, 82 S. C. 1, 62 S. E. 1115; Chamberlain v. Mensing, 51 Fed. 511. 

But judgment will not be arrested because of defects in complaint which might have been 
cured by amendments before or after judgment. Brickman v. R. R. Co., 8 S. C. 173. 

A petition to enforce mechanic's lien is subject to the liberal rules of amendment under this 
Code. McGee v. Piedmont Co., 7 S. C. 263. A proceeding in mandamus in name of party, to 
which no objection is made, may be amended by substituting name of State. Runion v. Latimer, 
6 S. C. 126. 

Such a motion to amend is within the discretion of the Court. Chichester v. Hastie, 9 S. C. 334. 
So motion for leave to amend answer to plead Statute of Limitations. Seegers v. McCreery, 
41 S. 0. 548, 19 S. E. 696. And such discretion is not to be disturbed unless it deprives a 
party of substantial right. Trumbo v. Pinley, 18 S. C. 305; Stallings v. Barrett, 26 S. 0. 
474, 2 S. E. 483; Green v. Irdell, 31 S. C. 588, 10 S. E. 545; Garlington v. Copeland, 32 S. C. 
57, 10 S. E. 616. The Circuit Judge has power at Chambers to grant an order permitting an 
amendment of the complaint. Ellen v. Ellen, 26 S. C. 99, 1 S. B. 413. 

In actions against two, as copartners, the proof showing neither copartnership nor joint 
liability, and motion for nonsuit being made, _the plaintiff was properly allowed to amend, striking 
out name of one defendant and proceeding against the other. Bull v. Lambson, 5 S. C. 288. 

Application to amend before trial, made in good faith, should be allowed, where the amend- 
ment is such as the Code permits. Zimmerman v. Amaker, 10 S. C. 98. 

It is proper, upon the admitted fact of the lunacy of the defendant, to allow amendment 
making guardian ad litem party. Boyce v. Lake, 17 S. C. 481. 

It is error at the trial to permit the name of sole plaintiff to be stricken out and another 
substituted without giving defendant time to answer. Cleveland v. Cohrs, 13 S. C. 397; Coleman v. 
Heller, 13 S. C. 491. But if time to answer is not asked, the Court may, in its discretion, pro- 
ceed to trial upon the amended complaint. Tarrant v. Gittelson, 16 S. C. 231. 

Refusal to allow substitution of a new party, for a plaintiff, who shows no cause of action, 
is not error. Strickland v. Bridges, 21 S. C. 21. 

The Coiirt may correct by amendment manifest errors and mere clerical mistakes. Carroll v. 
Tomkins, 14 S. C. 223; Heyward v. Williams, 48 S. C. 564, 26 S. B. 797. 



OF SOUTH CAROLINA 165 

Where complaint alleged quantum meruit for work done, it is permissible to allow amendment, 
showing special contract, in order to allow proof of it. Tarrant v. Gittelson, 16 S. 0. 231. 

Or where the complaint is for assault, it may be amended so as to be for assault and battery. 
Sullivan v. Sullivan, 24 S. C. 474. 

Plaintiff may be permitted to amend the complaint so as to conform it to the facts proved. 
R. R. Co. V. Barrett, 12 S. C. 173. 

But he cannot be permitted to amend by stating a wholly different and new cause of action, when 
his complaint is held to state no cause of action. Trumbo v. Finley, 18 S. C. 305 ; Sullivan v. 
Sullivan, 24 S. C. 474; Coker v. Monaghan Mills, 119 Fed. 706. 

Nor to change substantially the claim. Whaley v. Stevens, 21 S. C. 221. As to substitute 
a claim of right of way appurtenant for a right of way in gross. lb. Or claim of cancellation 
of an instrument instead of reformation thereof. Kennerty v. Etiwan Qo., 21 S. C. 226. Or 
to change an action for accounting into a direct attack upon the settlement and receipt, set up in 
defense thereto. Dunsford v. Brown, 19 S. C. 560. Or to make a case at law to recover 
mortgaged land a case in equity to redeem it. Skinner v. Hodge, 24 S. C. 165. Or to change 
action to enjoin judgment as paid into one for specific performance of contract. Miller v. Klugh, 
29 S. C. 124, 7 S. E. 67. But in action on sealed notes against a firm, calling them promissory 
notes, an amendment alleging indebtedness on the account for which the notes were given 
does not substantially change the claim and should be allowed. Sibley v. Young, 26 S. C. 415, 
2 S. E. 314. Where the amendment is refused on legal grounds, the action of the Court will 
be reviewed. lb.; Madden v. Watts, 59 S. C. 81, 37 S. E. 209. 

So amendment is allowed to allege sealed note instead of promissory note. Moore v. Christian, 
31 S. C. 338, 9 S. E. 981. 

Wide as is the latitude allowed by this Section, an order to amend cannot be granted where its 
effect would be to incorporate into one action two distinct actions against different parties. 
Howard v. Wofford, 16 S. C. 148. 

An amendment to answer setting up a separate defense, when case is called for trial, allowed 
where the facts alleged in amendment are nearly identical with the facts set out in the original 
answer, and the plaintiff asked no delay on account of such amendment. Richardson v. Wallace, 
39 S. C. 223, 17 S. E. 725. 

In action for partition where defendant plead a general denial, and claimed title in himself, 
an amendment allowing him also to plead that plaintiff was estopped to claim title did not mate- 
rially change the defense. Woodward v. Williamson, 39 S. C. 336, 17 S. E. 778. 

Can a petition for prohibition be changed by amendment so as to ask for an injunction. 
Hunter v. Moore, 39 S. C. 396, 17 S. E. 797. 

Where an action was brought under the statute against a railroad for damages from fire, the 
plaintiff will not, after an action for common law negligence has been barred, be allowed to 
amend the complaint so as to strike out the allegations referring to the statute and alleging an 
action at common law. Mayo v. Spartanburg, etc., R. Co., 43 S. 0. 225, 21 S. E. 10. 

It is within the discretion of the Court to allow an amendment to a complaint converting it 
from an action against a copartnership to one against the individual members thereof. Baker v. 
Hornik, 51 S. C. 313, 28 S. E. 941. 

An amendment to conform to the facts proved is within the discretion of the Judge. Interstate 

B. & L. Ass'n V. Waters, 50 S. C. 459, 27 S. E. 948; Booth v. Langley Mfg. Co., 51 S. 0. 412, 
29 S. E. 204. 

Error to allow amendment during trial after plaintiff had rested, and the defendant has moved 
for a nonsuit so as to convert admissions into denials in the answer. Cuthbert v. Brown, 49 
S. C. 513, 27 S. E. 485. But amendments may be allowed to complete a defectively stated cause 
of action. Brown v. C. M. Ry. Co., 58 S. C. 466, 36 S. E. 852; Ruberg v. Brown, 50 S. C. 
397; 27 S. E. 873. Or change the alleged date of the transaction in question where the other 
party is Hot misled thereby. Dent v. S. B. R., 61 S. C. 329, 39 S. E. 527. A complaint 
in foreclosure may be amended after the testimony is in so as to allege a cause of 
action for the purchase money of the land only. Whitmire v. Boyd, 53 S. 0. 315, 31 
S. E. 307. So an amendment may be allowed after the close of argument. Mew -y. 

C. & S. Ry. Co., 55 S. C. 90, 32 S. E. 831. Or after demurrer is overruled. Bomar v. Means, 

47 S. C. i90, 25 S. E. 60. And also after case is remanded from Supreme Court. lb.; Jen- 
nings V. Parr, 54 S. C. 109, 32 S. E. 73; Lawton v. S. B. R. Co., 61 S. C. 548, 39 S. E. 752. 
But when a litigant waits until after he has been successful in his appeal his motion to amend comes 
too late. Cothran v. Knight, 47 S. C. 243, 25 S. E. 142. After judgment answer cannot be 
amended to change admissions into denials. Martin v. Fowler, 51 S. C. 164, 28 S. E. 314. 
Amendment changing defense not allowed. Pickett v. Fidelity and CasTialty Co., 60 S. C. 477, 
38 S. E. 160. Amendment not to set up usury after testimony had been taken and reported._ 

Section permits striking out of names of two parties for whose benefit the action was instituted, 
as it did not involve the merits. McDaniel v. A. C. L. Railroad, 76 S. C. 18, 56 S. E. 543. 

What amendments to pleadings allowed hereunder. Knight v. Cotton Mills, 80 S. 0. 213, 61 
S. E., 396. 

Amendments permitted by this Section stated. Smith v. Railway Co., 80 S. C. 1 61 S. E. 205. 

Amendment of complaint after new trial granted on appeal. Taylor i\ A. C. L. R. Co., 81 
S. C. 574, 62 S. E. 1113. 

Cited Peterman v. Pope, 74 S. C. 297, 54 S. E. 569. 

Plaintiff may amend by striking out and inserting. Pickett v. Southern Railway, Carolina 
Division, 74 S. C. 243, 54 S. E. 375. 

Motion to amend should have been granted. Adams v. Railroad Co., 68 S. 0. 409, 47 S. E. 693. 
Limitation of right to amend applies to amendments asked for during or after trial which might 
prejudice by surprise. Standard Machine Co. v. Alexander, 68 S. C. 508, 47 S. E. 711. Com- 
plaint whenever stating cause of action may be amended. Kitchen v. Ry. Co., 68 S. 0. 567, 

48 S. E. 4, 1 Am. & Eng. Ann. Cas. 747. Amendment properly allowed. Morrow v. Gaffiney 
Mfg. Co., 70 S. C. 245, 49 S. E. 573. 

Amendment sustained. Sutton v. Catawba Power Co., 70 S. C. 270, 49 S. E. 863. 

Amendment proper. Batson v. Paris Mountain Water Co., 73 S. C. 368, 379, 53 S. E. 500. 

Amendments as to parties. Peeples v. Mims, 64 S. C. 226, 42 S. E. 155 ; Glenn v. Gerald, 
64 S. C. 236, 42 S. E. 155; Hellams v. Prior, 64 S. C. 543, 43 S. E. 25. 

What amendments should be made. Kennedy v. Hill, 79 S. C. 272, 60 S. E. 689. 

Master to whom case has been referred to take testimony, cannot allow amendment as to parties. 
Dixon V. Roessler, 76 S. C. 415, 57 S. E. 203. Leave to amend. Smith v. Southern Railway, 
80 S. C. 4, 61 S. E. 205. 

Amendment ihaking- additional party allowed Cousar v. Heath, Witherspoon & Co., 80 S. C. 
470, 61 S. E. 973. 



166 CODE OF CIVIL PROCEDURE 

Amendment permitted after sustaining demurrer. Kentucky Refining Co. v. Saluda Oil Co., 
70 S. C. 89, 48 S. E. 987. 

Amendment permitted after other amendment to make pleadings consistent. Webb v. A. C. L. 
R. Co., 76 S. O. 193, 56 S. E. 954, 11 Am. & Eng. Ann. Gas. 834, 9 L. R. A., N. S., 1218n. 

Amendment to conform to proof refused after nonsuit. Clio Gin Co. v. Western Union Tel. 
Co., 82 S. C. 405, 64 S. E. 426. 

Refusal of amendment pleading statute of limitations sustained. De Hihns v. Free, 70 S. 0. 
344, 49 S. E. 841. 

Motion to amend is addressed to discretion of Court. Clerks' Union v. Knights of Columbus, 
70 S. C. 550, 50 S. E. 206. 

Amendment to conform to proof allowed. Fairy v. Kennedy, 68 S. C. 250, 47 S. E. 138; 
Adams y. Railroad Co., 68 S. C. 410, 47 S. E. 693. 

Restriction against changing cause of action applies only to amendments asked during or 
after trial. Standard Sewing Mach. Co. v. Alexander, 68 S. C. 506, 47 S. E. 711. See also, 
Kennedy v. Hill, 79 S. C. 270, 60 S. E. 689. 

Refusal to allow amendment at trial does not prejudice right to ask it before next trial. Hutch- 
ings V. Mills Mfg. Co., 68 S. C. 512, 47 S. E. 710. 

Leave to answer over refused, the case being well under reference. Kiddell v. Bristow, 67 S. 
C. 175, 45 S. E. 174. 

Amended to cure misnomer of defendant. Sentell v. Railway Co., 67 S. C. 231, 45 S. E. 155. 

Defendant relieved from default judgment. Morrow v. Gaffney Mfg. Co., 70 S. C. 245, 49 
S. E. 573. 

Amendment allowed striking out two of the names of parties for whose benefit the action is 
brought does not involve the merits. McDaniel v. A. C. L. R. Co., 76 S. C. 15, 56 S. E. 543. 

Amendment allowed adding additional act of negligence and increasing claim for damages. 
Pickett V. Railway Co., 74 S. C. 236, 54 S. E. 375. 

Answer amended to plead nonpayment of costs. Peterman v. Pope, 74 S. C. 296, 54 S. E. 569. 

Discretion in allowing- amendment not ordinarily disturbed. Smith v. Rv. Co., 80 S. C. 1, 
61 S. E. 205. 

Limitations governing amendments. Knight, Yancey & Co. v. iEtna Cotton Mills, 80 S. C. 215, 
61 S. E. 396. 

Amendment as to a material matter of detail properly allowed. Jackson v. Southern Cotton 
Oil Co., 81 S. C. 566, 62 S. E. 854. 

When a new cause of action may be introduced by amendment. Taylor v. A. C. L. R. Co., 
81 S. C. 574, 62 S. E. 1113. 

Amendment changing allegations as to interests of parties and making additional parties in 
■ action for partition, allowed. Buist v. Williams, 83 S. C. 321, 65 S. E. 343. 

Amendment allowed as to how train was being moved. Sevier v. Southern Railway, 82 S. C. 
312, 64 S. E. 390. 

Complaint may be amended on motion by alleging additional act of negligence and increasing 
amount of damages. Pickett v. Southern Railway, 74 S. C. 236, 54 S. E. 375. 

Here it was not permissible to amend complaint stating cause of action under common law for 
damages from communicated fires so as to make it cause of action under statute. Brown v. 
Seaboard Air Line Railway, 83 S. C. 557, 65 S. E. 1102. 

In action for loss of bagg^age, answer of general denial cannot be amended after evidence is 
in, by setting up defense of warehouseman. Heiden v. Atlantic Coast Line Railroad, 84 S. C. 
117, 65 S. E. 987. 

After case remanded for new trial, amendment of answer by changing defense of denial of 
iona fides of a deed to denial of execution permitted where hardship or surprise not shown. Cole v. 
Ward, 85 S. C. 259, 67 S. E. 295. 

Amendment as to excessive speed of train permitted during argument, where case developed on 
theory that speed of train was act of negligence. Shelton v. Southern Railway, 86 S. C. 98, 67 
S. E. 899. 

In suit against "county commissioners" on county bonds, complaint may be amended at trial 
so as to be a suit against county by its corporate name. Commissioners v. Bank, 97 U. S. 374, 24 
L. Ed. 1060. 

In suit on bonds, where verdict included installments maturing up to time of verdict, com- 
plaint may be amended to conform to verdict, although judgment was not asked for installments 
payable after commencement of suit. Post v. Wise Township, 101 Fed, 204. 

Complaint may be amended during trial so as to strike out allegations relating to minority 
of plaintiff and appointemnt of guardian, if minor has arrived at majori*y. Seigler v. Southern Ry., 
85 S. C. 345. J ,- & 

"Plaintiff cannot introduce bv amendment facts occurring subsequent to commencement of action." 
Northrop v. Trust & Deposit Co., 119 Fed. 969, 971. 

See notes under 432 supra. 

A Circuit Judge has the discretion as to allowance of amendments to pleadings. Sims v. Ins. 
Co., 103 S. C. 214; 87 S. E. 999. 

In an action by a servant for injury sustained while in the employment of the master, the 
Court properly admitted evidence that the plaintiff contracted pleurisy on account of the injury 
complained of, where appellant's attorneys do not contend that they were taken by surprise. 
Prince v. Massasoit Mfg. Co., 107 S. C. 387, 93, S. E. 2. 

Defendant's motion to amend by setting up statutes of fraud after case was argued, could not 
be allowed under this Section, if its effect was to change defense from denial of oral contract to 
avoidance. Fanning v. Bogacki, 111 S. C. 376, 98 S. E. 137. 

(437) § 6. CoTirt May Give Relief in Case of Mistake.— The Court 
may likewise, in its discretion, and upon such terms as may be just, allow 
an answer or reply to be made, or other act to be done, after the time lim- 
ited by this Code of Procedure, or, by an order, enlarge such time ; and may 
also, in its discretion and upon such terms as may be just, at any time! 
within one year after notice thereof, relieve a party from a judgment, order, 
or other proceeding, taken against him through his mistake, inadvertence, 



OF SOUTH CAROLINA 167 

surprise, or excusable neglect, and may supply an omission in any proceed- 
ing; and whenever any proceeding taken by a party fails to conform in 
any respect to the provisions of this Code of Procedure, the Court may, 
in like manner, and upon like terms, permit an amendment of such pro- 
ceeding, so as to make it conformable thereto. 
Civ. Pro., '12, § 225; Civ. Pro., '02, § 195; 1870, XIV, § 197. 

A brief as to the effect of a consent decree is not sucli a mistake as will relieve one under 
this Section. Alma Lumber Co. v. Beecham, 47 S. C. 393, 25 S. E. 285. A refusal to allow 
time to answer not an abuse of discretion. McDaniel v. Addison, 53 S. C. 222, 31 S. E. 226. Where 
the rule of Court fixes the time within which an Act is to be done, a party cannot plead as 
surprise that he did not know what time was limited. Brown v. Easterlin? 59 S O 472 ^8 
S. E. 119. ■ ' 

After time to answer has expired, the judge may impose as a condition of leave of answer the 
payment of all costs accrued. Hetch v. Freisleben, 28 S. 0. 181, 5 S. E. 475. 

A decree will not be reversed for defects purely technical, which might have, upon objection been 
cured by amendment. Lanir v. Griffin, 11 S. C. 565. ' 

Such relief is only to be given in cases where the judgment has been taken through party's own 
mistake, inadvertence, surprise or excusable neglect, and does not apply to cases where relief 
may be had upon application to same tribunal which rendered judgment under General Statutes 
Garvin v. Garvin, 13 S. C. 160. 

It is intended for parties who may, through such cause, have lost the opportunity to be present 
at the trial or to be represented there; and not for parties who, represented at the trial, are 
only entitled to relief by application for new trial under the provisions of the law therefor ' Wil- 
liams V. Charleston, 7 S. C. 71; Gibbes v. Elliott, 8 S. C. 60; Steele v. Railroad 14 S C 324- 
Hand v. R. R. Co., 17 S. C. 219; Clark v. Wimberly, 24 S. C. 138; Kaminsky v. Railroad Co' 
25 S. C. 53; Hubbard v. Camperdown Mills, 26 S. C. 581, 2 S. E. 576; Woodward v Elliott 27 
S. C. 368, 3 S. E. 477. • , . 

And extends to cases of such mistake or excusable neglect on the part of the party's attornev 
Vaughan v. Hewitt, 17 S. C. 442. ^" 

One Circuit Judge may allow absent party to file security for costs after the time to do so, 
fixed by another has expired. McMillan v. MeCall, 2 S. C. 393; Williams v. Conner, 14 S. C. 62l'. 

Upon application for such relief by defendant, upon grounds of failure to answer because of ill- 
ness, refused by the Judge, it must be assumed that the Judge's order was the result of his 
conclusion as to the weight of evidence and not to be disturbed by the Supreme Court. Buttz v 
Campbell, 15 S. C. 614. 

This Section authorizes Judge to vacate judgment by default. Buttz v. Campbell 15 S C 614- 
Truett V. Rains, 17 S. C. 453; Leconte v. Irwin, 19 S. C. 554. ' ' ' 

This limitation of one year is the only limitation in this State to time for motion to set aside judg- 
ment. Thew V. Porcelain Co., 5 S. C. 415; Ex parte Carroll, 17 S. C. 446. There is no 
other limitation as to the time within which a motion to vacate or set aside a judgment may be 
made, than that provided in this Section. Allen v. Allen, 48 S. C. 566, 26 S. E. 786. 

Such relief against a judgment must be sought within the one year after notice thereof. 
Vaughn v. Hewitt, 17 S. C. 442. 

Where plaintiff's attorney failed to attend the trial because he was detained in Court in his 
own county, and judgment was obtained against him, he was not entitled to relief against this 
judgment under this Section. Claussen v. Johnson, 32 S. C. 86, 11 S. E. 209. 

Nor can party find such relief from a judgment by default when he entrusted a friend to 
hand the copy summons to an attorney, with directions to plead payment, but the friend 
failed to do so. Sullivan v. Susong, 36 S. C. 287, 15 S. E. 377. 

The Court can correct any mistake or clerical error in its own process to make it conform to 
the record. Carroll v. Tompkins, 14 S. C. 223. But it has no authority to make such 
alteration as would contradict the record and change the whole scope of the judgment. Trimmier 
V. Thomson, 19 S. C. 247. Nor to amend decree rendered in term time after adjournment of 
Court. Garlington v. Copeland, 32 S. C. 57, 10 S. E. 616. 

This Section does not relate to Courts of Magistrates. Doty v. Duvall, 19 S. C. 143. 

Does it apply to Supreme Court? Clark v. Wimberly, 24 S. C. 138. 

It does not apply to extension of time for filing security for costs. Bomar v. Railroad Co., 
30 S. C. 450, 9 S. E. 512; Cummings v. Wingo, 31 S. C. 427, 10 S. E. 107. 

What is surprise? Martin v. Fowler, 51 S. C. 164, 28 S. E. 312. The sufficiency of the 
evidence as to surprise is for the Judge. Ex parte Rountree ; Michalson v. Rountree, 51 S. C. 
405, 29 S. E. 66. This is an exclusive remedy, taking the place of a bill for rehearsing or 
review. Carolina Nat. Bank v. Homestead B. & L. Ass'n 56 S. C. 12, 33 S. E. 781; Odom v. 
Burch, 52 S. C. 305, 29 S. E. 726. The discretion of the Judge will not be reviewed on 
appeal, except in case of abuse. lb.; Washington v. Hesse, 56 S. C. 28, 33 S. E. 787. 

Defendant properly relieved from default judgment. When complaint not verified proposed 
answer need not be. Farmers, etc., Mfg. Co. v. Smith, 70 S. C. 166, 49 S.- E. 226. 

Court may excuse default in attempting service bv mail. Cannady v. Martin, 72 S. C. 132, 
51 S. E. 549. 

No notice required of motion to extend time to answer a demur. Pishburne v. Minott, 72 
S. C. 570, 52 S. E. 648. 

Order extending time to answer not appealable, no abuse of discretion being shown. Bell v. 
Western Union Tel. Co., 73 S. C. 211, 53 S. E. 177. 

Motions hereunder considered. Vander Veen v. Wheeler, 76 S. C. 179, 56 S. E. 679. 

Motions for leave to answer are addressed to Court's discretion unless there is an abuse of 
discretion or error of law. McSween v. Windham, 77 S. C. 226, 57 S. E. 847. 

A Circuit Judge has no powers at chambers to set aside a judgment on the ground of 
surprise or excusable neglect hereunder. Sarrat v. Mfg. Co., 77 S. C. 90, 57 S. E. 616. 

Circuit Court has power to permit filing of exceptions to referee's report after ten days from 
notice of filing. Odom y. Newton, 81 S. C. 76, 61 S. E. 1071. 

Relief on ground of mistake, inadvertence, etc., may be granted bv any Judge in his discretion, 
as to any judgment. Dunton v. Harper, 64 S. C. 343, 42 S. E. i54. The remedy where 
default judgment goes beyond the relief demanded is by appeal. McMahon v. Pugh, 62 S. C. 
509, 40 S. E. 961. 

Court may permit exceptions to Master's report filed sifter expiration of ten days from filing 



168 CODE OF CIVIL PROCEDURE 

report. Brown v. Rogers, 71 S. C. 512, 51 S. E. 257; Odom v. Newton, 81 S. C. 76, 61 S. E. 
1071. 

Application by executor for leave to answer refused. Parks v. McDaniel, 75 S. C. 7, 54 S. 
E. 801, 117 Am. St. Rep. 878. 

Does not applj- when attorney had knowledge of order; exceptions. Dixon v. Floyd, 73 S. C. 
202, 53 S. E. 167. 

Further leave to answer given after default to answer on conditions named by other Judge. 
Kvlor V. Hiller, 72 S. C. 434, 52 S. E. 120. 

Time to answer may be enlarged on ex parte application. Fishburne v. Minott, 72 S. C. 570, 
52 S. E. 648. 

Error in construction of stipulation allowing time to answer. McSween v. Windham, 77 S. 
0. 223, 57 S. E. 847. 

Limitation in § 402 does not apply where party has no notice of the action. Jones v. 
Haile Gold Min. Co., 79 S. C. 50, 60 S. E. 35. 

Construed. In re Permelia Bugg-, 71 S. C. 439, 444, 51 S. E. 263. 

Opening judgment in partition to allow rights of grantee of cotenant to be determined. Ex 
parte Union Mfg. and Power Co., 81 S. C. 265, 62 S. E. 259, 128 Am. St. Rep. 908. 

Has no application to a judgment of forfeiture on recognizance where defendant was represented 
by attorney and only ground for relief is that attorney failed .to make defense. United States 
V. Wallace, 46 Fed. 569. 

Neglect in failure to answer excused. Turner v. Bolton, 82 S. G. 502. 

Error to set aside judgment where moving party was represented and defended action, on 
ground that judgment relied on in case and received without objection was afterwards set 
aside by Court as fraudulent. Peoples v. Ulmer, 64 S. C. 496, 42 S. E. 429. 

Where answer is not filed within the required time because motion to make complaint more 
definite and certain remains undisposed, default judgment may be set aside on terms. Bryce v. 
Southern Ry. Co., 129 Fed. 966. 

Circuit Judge during trial may grant motion to have order appointing guardian ad litem signed 
by clerk nunc pro tunc. Seigler v. Southern Ry., 85 S. C. 345, 67 S. E. 296. 

That notice of motion did not state grounds on which Court would be asked to vacate judg- 
ment will not be entertained here, unless record shows point was made on Circuit. Mortgage Co. 
V. Strait, 84 S. C. 141, 65 S. E. 1038. 

Equitable relief after expiration of time herein given. Pelzer Mfg. Co. v. Hamberg- Ins. Co., 71 
Fed. 826. 

Under this Section no hard and fast rule for the exercise of the Court's discretion can be 
laid down, and because some other Judge might have decided in a different way does not establish 
an abuse of discretion. Bishop v. Jacobs, 108 S. C. 49-93 S. E. 243. 

For the ' Court in its discretion to grant relief, under this Section, from a judg- 
ment within a year, the party must make a proper showing that it was taken against 
him through his excusable neglect, inadvertence, mistake, or surprise ; but when such 
proper showing is made the same relief may be given after the time for appeal has 
expired in respect of a judgment on award of arbitrators as in case of any other judg- 
ment time to appeal from which has expired. Rogers v. McManus, 108 S. C. 350, 94 S. E. 730. 

The complaint in a partition proceeding showing that defendant had an interest in the subject 
of the action entitled him to assume that the decree be based thereon, but which, in his absence 
was based on evidence that he had conveyed his interest to plaintiff, there being no amendment 
to the complaint, and defendant having had no opportunity to contest such issue, the Court 
abused its discretion in not allowing him to answer after a lapse of "six years. Witherspoon v. 
Witherspoon, 108 S. C. 394, 95 S. E. 77. 

Circuit Court may, in the exercise of the discretion vested in it by this Section, grant jury 
trial on appeal from decree of Probate Court, after lapse of time prescribed by Circuit Court 
rule 28, applicable by analogy, for service of notice of motion for such trial. Mier v. Kornahrens, 
113 S. C. 271, 102 S. E. 285. 

When a motion to open a judgment for excusable neglect was denied by the trial Court and 
the decision affirmed, such decision is the law of the case, and is conclusive of a second motion 
to open the judgment on the same ground. Sharpe v. Higgins, 114 S. C. 40, 102 S. E. 789. 

A motion to set aside service of summons on the ground that it was not properly served so as 
to give tne Court jurisdiction, does not come within the provisions of this Section, where it 
is discretionary with the Judge, but rather a motion as a matter of right. Fitzgerald v. Case 
Co., 94 S. C. 59; 77 S. E. 741. 

The defendant who permitted judgment to be taken against him by default on a note 
for the purchase price of an automobile is not entitled to have its enforcement enjoined 
upon the commencement of an action against the plaintiff for defective part of the 
machine. It is sufficient to say that the order of injunction appealed from must be 
reversed under the authority of Life Ins. Co. v. Mobley, 90 S. C._ 554, 73 S. E. 1032, 
in which case the Chief Justice has collected and quoted the decisions and declares what 
the law is in such cases saying: 

It was the intention of the Constitution and the Legislature to abolish proceedings 
by petitions for rehearing and by bill of review and to substitute therefor the remedy 
provided by this Section, which, when applicable, was intended to be exclusive. Knox v. 
McKee, 96 S. C. 418, 81 S. E. 12. 

A denial of motion under this Section will not be disturbed where the defendant claims 
that the default was due to his bad health and deficient memory. Bank v. Talbert, 97 
S. C. 74, 81 S. E. 305. 

This Section does not limit the time within which the Court might grant relief from 
a judgment, where the ground for relief was not a mistake or inadvertence of the 
applying party, but an omission of necessary procedure by the adverse party. Bank of 
Columbia v. Havird, 99 S. C. 110; 82 S. E. 1006. 

(438) § 7. Suing Party by Fictitious Name. — When the plaintiff shall 
be ignorant of the name of the defendant, such defendant may be desig- 
nated in any pleading or proceeding by any name ; and when his true name 
shall be discovered, the pleading or proceeding may be amended accord- 
ingly. 

Civ. Pro., '12, § 226 ; Civ. Pro., '02, § 196 ; 1870, XIV, § 198. 



OF SOUTH CAROLINA 169 

(439) § 8. No Error or Defect to Be Regarded Unless It Affect Sub- 
stantial Rights. — The Court shall, in every stage of action, disregard any 
error or defect in the pleadings or proceedings, which shall not affect the 
substantial rights of the adverse party; and no judgment shall be reversed 
or affected by reason of such error or defect. 

Civ. Pro., '12, § 227; Civ. Pro., '02, § 197; 1S70, XIV, § 199. 

If party wishes to take advantage of any irregularity in the pleadings he must move 
in due time before trial for such order as he deserves. Blakely v. Eraser, H S. C. 122. 

Judgment may be rendered on account stated, although no allegation of account stated was 
made. Sloan v. Westfield, 17 S. C. 589. 

This Section precludes the allowance of a nonsuit on the ground of informality alone. Bowden 
V. Winsmith, 11 S. C. 409. 

A failure of plaintiff to allege his readiness to perform his part of the contract did not aiiect 
the substantial rights of the defendant and was properly disregarded by the Circuit Judge. Rail- 
road Co. V. Garland, 14 S. C. 63. 

Failure to insert in endorsement on complaint for judgment the words "have judgment" was 
mere clerical error not affecting the substance, and should be disregarded in the supplementary 
proceedings thereon, which is but a stage of the original action. Henlien v. Graham, 32 S. C. 
303, 10 S. E. 1012. 

A party cannot under this Section be relieved of consequences of failure to comply with order 
for security for costs within the time. Bomar v. Railroad Co., 30 S. 0. 450, 9 S. E. 512; Cum- 
mings V. Wingo, 31 S. C. 427, 10 S. E. 107. 

Immaterial defects in allegation to the qualification of executors. Jerkowski v. Marco, 56 
S. C. 241, 34 S. E. 389. Effect given material facts, not in the pleadings, but brought out in 
the evidence, without objection. Matthews v. Cantey, 48 S. C. 588, 26 S. E. 804; Commissioners 
V. Bank of Commerce, 97 U. S. 374. 

Where suit on a note is brought in the name of one corporation which formerly owned it, but 
whose stock was taken over by another corporation, together with all of its assets and changed 
its name, the plaintiff should not be nonsuited, but allowed to substitute the name of the second 
corporation. Citizens Saving Bank v. Eflrd, 96 S. C. 18; 79 S. E. 637. 

Where an action is brought in the name of a guardian ad litem, an amendment may be allowed 
substituting the infant appearing by such guardian ad litem as plaintiff. Pieper v. Shahid, 101 
S. C. 364; 85 S. E. 905. 

A variance will not be deemed material where the allegation was that plaintiff was injured in 
a collision between two cars by the negligence of employer and the proof shows that the cars 
came so close together as to injure plaintiff. Pool v. Traction Co. 101 S. C. 387; 85 S. E. 897. 

(440) § 9. Supplemental Complaint, Answer, and Reply. — The plain- 
tiff and defendant, respectively, may be allowed, on motion, to make a sup- 
plemental complaint, answer, or reply, alleging facts material to the case 
occurring after the former complaint, answer, or reply, or of which the 
party was ignorant when his former pleading was made, and either party 
may, by leave of the Court, in any pending or future action, set up by a 
supplemental pleading the judgment or decree of any Court of competent 
jurisdiction rendered since the commencement of such action, determining 
the matters in controversy in said action, or any part thereof; and if said 
judgment be set up by the plaintiff, the same shall be without prejudice 
to any provisional remedy theretofore issued, or other proceedings had in 
said action on his behalf. 

Civ. Pro., '12, § 228 ; Civ. Pro., '02, § 198 ; 1870, XIV, § 200. 

The Court may examine into the merits of the proposed supplemental defense, or other matter, 
and exercise its discretion in passing on motion. Copeland v. Copeland, 60 S. C. ISS, 38 S. E. 269. 

Facts occurring after commencement of action can only be brought before the Court by supple- 
mental pleadings and not by amendment of original pleadings. McCaslan v. Latimer, 17 S. C. 
123. 

But plaintiff cannot in action to recover real estate set up a legal title acquired after action 
brought. Moore v. Johnson, 14 S. C. 434. 

Such motion to make supplemental pleadings may be made at chambers. Edwards v. Edwards, 
14 S. C. 11. 

But the opposite party should have notice of such motion. 7b. ; Parnell v. Maner, 16 S. C. 
348. Four days' notice required. Avery v. Wilson, 47 S. C. 78, 25 S. E. 286. 

Where submission was agreed to and plaintiff opposed the award, the defendant had the right 
to plead by the supplemental answer. McCrady v. Jones, 36 S. C. 136, 15 S. E. 430. 

A bill in equity prior to 1870 must be revived and amended by such supplemental complaint 
and summons. Arthur v. Allen, 22 S. C. 432. 

The extinguishment of plaintiff's interest during the pendency of the action should be brought 
to the Court's attention by supplemental pleading. Matthews v. Cantey, 48 S. C. 588, 26 S. E. 
894. 

Delay in setting up supplemental answer. Sparks v. Green, 69 S. C. 225, 48 S. E. 61. 

Pleading accord and satisfaction. Wieters v. Gideon, 76 S. C. 458, 57 S. E. 193. 

The Court must exercise its discretion in allowing or refusing a supplemental pleading. Bernard 
V. Bernard, 79 S. C. 364, 60 S. E. 700, 128 Am. St. Rep. 852. 



170 CODE OF CIVIL PROCEDURE 

Motion for leave to file supplemental complaint held premature. Knight v. Union Mfg. Co., 
81 S. C. 539, 62 S. E. 789; Northrop v. Mercantile Trust, etc., Co., 119 Fed. 969. 

Recitals in supplemental complaint and notice. Lumber Co. v. Lumber Co., 84 S. C. 511. 

An opinion of this Court to the effect that- the defendant had not acquired the ownership of 
certain stock of a corporation, and, therefore, had not converted it, renders that question res 
adjudicata upon a second appeal after trial upon a supplemental complaint and substantially the 
same evidence. Haselden v. Hamer, 107 S. C. 92 S. E. 387. 

Under this Section, a motion should not be allowed to make supplemental pleading, unless the 
Court, in its discretion, is satisfied that it would be in the interest of justice. Porter v. Ins. 
Co., 107 S. C. 393; 93 S. E. 141. 

Under this Section, where a case is pending at the time the attorneys entered into a stipulation 
concerning a release relied on by defendant, defendant to get the benefit of it should have made a 
motion for leave to file a supplemental answer. Rish v. S. A. L. Ry. 108 S. C. 30; 93 S. E. 250. 



TITLE VII. 

OF THE PROVISIONAL REMEDIES IN CIVIL ACTIONS. 

Chapter I. Arrest and Bail, 170. 

Chapter II. Claim and Delivery of Personal Property, 176. 

Chapter III. Injunction, 179. 

Chapter IV. Attachment, 185. 

Chapter V. Provisional Remedies, 197. 



CHAPTER I. 

Arrest and Bail. 

(441) § 1. No Person to Be Arrested in Civil Action, Except as 
Prescribed. — No person shall be arrested in a civil action, except as pre- 
scribed by this Code of Procedure ; but the same shall not apply to pro- 
ceedings for contempt. 

Civ. Pro., '12, § 229 ; Civ. Pro., '02, § 199 ; 1870, XIV, § 201. 

Writ of tie exeat repuhlica abolished. Ex parte Messervy, 80 S. C. 287, 61 S. E. 445. 
Actions for false imprisonment and malicious prosecution distinguished. Barfield v. Coker, 
73 S. C. 182, 53 S. E. 170. 

(442) § 2. Arrest in Civil Actions in What Cases. — The defendant 
may be arrested, as hereinafter prescribed, in the following cases : 

1. In an action for money received, or property embezzled or fraudu- 
lently misapplied, by a public officer, or by an attorney, solicitor, or coun- 
sellor, or by an officer or agent of a corporation or banking association, in 
the course of his employment as such, or by any factor, agent, broker, or 
other person in a fiduciary capacity, or for any misconduct or neglect in 
office, or in a professional employment. 

Sufficiency of complaint and affidavits in action against agent for moneys collected in a 
fiduciary capacity. National Bank v. Jennings, 38 S. C. 372, 17 S. E. 16. 

Arrest in action for fraudulent misappropriation of property. Martin v. Hutto, 82 S. 0. 439, 
64 S. E. 421; Ex parte Hutto, 78 S. C. 560, 60 S. E. 34. 

Warrant for arrest should not issue in admiralty cases in absence of fraud. The Bremena v. 
Card, 38 Fed. 144. 

Conditions precedent must be complied v^ith. Martin v. Hodge, 87 S. C. 214; Ex parte 
Messervy, 80 S. C. 286. 

2. In an action to recover the possession of personal property fraudu- 
lently detained, or where the property, or any part thereof, has been fraud- 
ulently concealed, removed, or disposed of, so that it cannot be found or 
taken by the Sheriff or Constable, and with intent that it should not be so 
found or taken, or with intent to deprive the plaintiff of the benefit thereof. 

Bail pending appeal from order of arrest. Ex parte Hutto, 78 S. 0. 560, 60 S. E. 34. 



OF SOUTH CAROLINA 171 

3. When the defendant has been guilty of a fraud in contracting the 
debt, or incurring the obligation for which the action is brought, or in 
concealing or disposing of the property for the taking, detention, or con- 
version of which the action is brought, or when the action is brought to 
recover damages for fraud or deceit. 

What are insuflScient grounds for arrest under this subdivision. Davis v. Cardue, 38 S. C. 
471, 17 S. E. 247. 

4. When the defendant has removed or disposed of his property, or is 
about to do so, with intent to defraud his creditors. 

But no female shall be arrested in any action. 

5. Whenever a person domiciled in this State, indebted by bond, note, or 
otherwise, is about to remove or abscond from the limits of this State, and 
the said debt is not yet due, but payable at some future date, it shall and 
may be lawful for the obligee, payee, or holder of said demand, or his as- 
signee, or endorsee, as the case may be, upon swearing that such person is 
indebted to him, and that the demand is just and owing, but not yet due, 
and that the debtor is about to abscond or remove without the limits of 
this State, and that such creditor was not aware that the debtor had any 
intention to remove from the State at the time when the original contract 
was made, or at the time of such assignment, or endorsement, as the case 
may be, to commence an action by issuing a summons and complaint and 
shall have power to arrest and hold to bail in such manner as is now pre- 
scribed in this Chapter in cases of debts actually due. 

Arrest in action for damages on account of fraud in selling land without notice of prior sale. 
Davis V. Reynolds, 77 S. C. 225, .57 S. E. 850. 

6. In an action for the recovery of damages in a cause of action not 
arising out of contract, when the defendant is a nonresident of the State 
or is about to remove therefrom, or when the action is for an injurj^ to 
person or character, or for injury or for wrongfully taking, detaining or 
converting property. 

Civ. Pro., '12, § 230 ; Civ. Pro., '02, § 200 ; 1870, XIV, § 202. 

Arrest by execution under § 602 is authorized by this Section and § 439. Hurst v. Samuels, 
29 S. C. 476, 7 S. E. 822. 

Art. 1, § 24, Const., does not apply to judgment for damages for injury from battery and 
may be enforced against defendant bv execution against his person. Ex parte Berry, 85 S. C. 
243, 67 S. E. 225, 20 Am. & Eng. Ann. Cas. 1344. 

Where non-resident sells and collects purchase money, giving receipt therefor, to citizen of 
this State, for timber both felled and dead but standing, and after purchaser has gone upon lands 
and prepared part of timber for market, he conveys by formal deed same timber to another, 
without notice of first sale, he is subject to arrest in action for damages by first purchaser. r)avis 
V. Reynolds, 77 S. C. 255, 57 S. E. 850. 

In an action for damages for wrongfully causing plaintiff's discharge from his employment, 
the Court issued an order providing that the execution should issue against the defendant's person 
if the execution against his property was returned unsatisfied. Held that the order was justified. 
Castles V. S. C. Law & Col. Agency. 104 S. C. 81; 88 S. E. 273. 

Where defendant in an action for division of crops disposed of the whole crop pending the 
action, he was within the provisions of this Section. Maxwell v. Horton, 107 S. C. 380; 93 S. E. 4. 

(443) § 3. Order for Arrest — By Whom to Be Made. — An order for 
the arrest of the defendant must be obtained from a Judge, Magistrate, or 
Clerk of the Court, in which or before whom the action is brought. 

Civ. Pro., '12, § 231; Civ. Pro., '02, § 201; 1870, XIV, 203. 

(444) § 4. AiSdavit to Obtain Order for Arrest. — The order may be 
made where it shall appear to the proper officer by the affidavit of the 
plaintiff, or of any other person, that a sufficient cause of action exists, and 



172 CODE OF CIVIL PROCEDURE 

that the case, from the facts stated, is one of those mentioned in Section 
442. 

Civ. Pro., '12, § 232; Civ. Pro., '02, § 202; 1870, XIV, 204. 

Affidavit held sufficient in National Bank v. Jennings, 38 S. C. 372, 17 S. E. 16. 
Martin v. Hutto, 82 S. C. 439, 64 S. E. 421. 

(445) § 5. Security by Plaintiff Before Obtaining Order for Arrest. — 

Before making the order, the Judge or other officer, shall require a writ- 
ten undertaking on the part of the plaintiff, with or without sureties, to 
the effect that, if the defendant recover judgment, the plaintiff will pay 
all costs that may be awarded to the defendant and all damages which he 
may sustain by reason of the arrest, not exceeding the sum specified in the 
undertaking, which shall be at least one hundred dollars. If the undertak- 
ing be executed by the plaintiff, without sureties, he shall annex thereto an 
affidavit that he is a resident and householder or freeholder within the 
State, and worth double the sum specified in the undertaking, over all his 
debts and liabilities. 

Civ. Pro., '12, § 233 ; Civ. Pro., '02 ; § 203 ; 1870, XIV, § 205. 

Martin v. Hodge, 87 S. C. 214. 

(446) § 6. Order for Arrest — When it May Be Made, and Its Form. — 

The order may be made to accompany the summons, or at any time after- 
wards before judgment. It shall require the Sheriff or Constable of the 
county where the defendant may be found forthwith to arrest him, and 
hold him to bail in a specified sum, and to return the order, at a place and 
time therein mentioned, to the plaintiff or attorney by whom it shall be 
subscribed or endorsed. 

But said order of arrest shall be of no avail, and shall be vacated or set 
aside, on motion, unless the same is served upon the defendant, as provided 
by law, before the docketing of any judgment in the action; and the de- 
fendant shall have twenty days, after the service of the order of arrest, in 
which to answer the complaint. 

Civ. Pro., '12, § 234 ; Civ. Pro., '02, § 204 ; 1870, XIV, § 206. 

(447) § 7. Original Affidavit and Order Delivered to Sheriff, and 
Copy to Defendant. — The affidavit and order of arrest shall be delivered 
to the Sheriff or Constable, who, upon arresting the defendant, shall deliver 
to him a copy thereof. 

Civ. Pro., '12, 235 ; Civ. Pro., '02, § 205 ; 1870, XIV, § 207. 

(448) § 8. Arrest— How Made.— The Sheriff or Constable shall exe- 
cute the order by arresting the defendant and keeping him in custody until 
discharged by law, and may call the power of the county to his aid in the 
execution of the arrest, as in case of process. 

Civ. Pro., '12, § 236; Civ. Pro., '02, § 206; 1870, XIV, § 208. 

(449) § 9. Defendant to Be Discharged on Giving Bail or Making a 
Deposit. — The defendant, at any time before execution, shall be dis- 
charged from the arrest, either upon giving bail or upon depositing the 
amount mentioned in the order of arrest, as provided in this Chapter, or 
he may be discharged under provisions of Sections 811-817 inclusive, 
of Code of 1922 Procedure. 

Civ. Pro., '12, § 237 ; Civ. Pro., '02, § 207 ; 1870, XIV, § 209. 



OF SOUTH CAROLINA 173 

This Section does not affect Chapter C, of the General Statutes, and under that Chapter the 
defendant may be discharged under final process. Hurst v. Samuels, 29 S. 0. 476, 7 S. E. 822. 

This Section is to be construed in connection with the Sections of the Civil Code relating to 
discharge of prisoners as insolvent debtors so that one arrested under this Chapter may take 
advantage of the Insolvent Debtor's Act. Hartsville Oil Mill v. DuBose, 104 S. C. 120; 88 
S. E. 446. 

(450) § 10. Bail — How Given. — The defendant may give bail by caus- 
ing a written undertaking to be executed by two or more sufficient bail, 
stating their places of residence and occupations, to the effect that the 
defendant shall, at all times, render himself amenable to the process of the 
Court, during the pendency of the action, and to such as may be issued to 
enforce the judgment therein ; or if he be arrested for the cause mentioned 
in the second subdivision of Section 442, hy an undertaking to the same 
effect as that provided by Section 474. 

Civ. Pro., '12, § 238; Civ. Pro., '02, § 208; 1870, XIV, § 210. 

Ex parte Berry, 85 S. C. 243. 

(451) § 11. Surrender of Defendant. — At any time before a failure to 
comply with the undertaking, the bail may surrender the defendant in their 
exoneration, or he may surrender himself to the Sheriff of the county 
where he was arrested, in the following manner : 

Civ. Pro., '12, § 239 ; Civ. Pro., '02, § 209 ; 1870, XIV, § 211. 

1. A certified copy of the undertaking of the bail shall be delivered to 
the Sheriff or Constable, who shall, by a certificate in writing, acknowl- 
edge the surrender. 

2. Upon the production of a copy of the undertaking and Sheriff's or 
Constable's certificate, a Judge or Clerk of the Court may, upon notice 
to the plaintiff of eight days, with a copy of the certificate, order that the 
bail be exonerated ; and on filing the order and papers used on said appli- 
cation, they shall be exonerated accordingly. But this Section shall not 
apply to an arrest for cause mentioned in Subdivision 2 of Section 442, 
so as to discharge the bail from an undertaking given to the effect 
provided by Section 474. 

The Bremena v. Card, 38 Eed. 144. 

Supplants Act of 1792, that a scire facias to revive a Judgment must be served upon a non- 
resident by posting the writ upon the courthouse door of the county where the defendant last 
resided. State v. Johnson, 77 S. C. 253, 57 S. E. 846. 

(429) § 12. The Bail May Themselves, or in Writing Authorize 
Arrest of Defendant — When.^ — For the purpose of surrendering the de- 
fendant, the bail, at any time or place, before they are finally charged, 
may themselves arrest him, or by a written authority, endorsed on a 
certified copy of the undertaking, may empower any person of suitable 
age and discretion to do so. 

Civ. Pro., '12, § 240; Civ. Pro., '02, § 210; 1870, XIV, § 212. 

The Bremena v. Card, 38 Fed. 144. 

(453) § 13. Bail — How Proceeded Against. — In case of failure to 
comply with the undertaking, the bail may be proceeded against by an 
action only. 

Civ. Pro., '12, § 241 ; Civ. Pro., '02, § 211 ; 1870, XIV, § 213. 

(454) § 14. Bail — How Exonerated. — The bail may be exonerated, 
either by the death of the defendant, or his imprisonment in a State prison, 
or by his legal discharge from the obligation to render himself amenable 



174 CODE OF CIVIL PROCEDURE 

to the process, or by his surrender to the Sheriff or Constable of the county 
where he was arrested, in execution thereof, within twenty days after the 
commencement of the action against the bail, or within such further time 
as may be granted by the Court. 

Civ. Pro., '12, § 242 ; Civ. Pro., '02, § 212 ; 1870, XIV, § 214. 

(455) § 15. Delivery of Undertaking of Bail to Plaintiif, and Its Ac- 
ceptance or Rejection by Him. — Within the time limited for that purpose, 
the Sheriff or Constable shall deliver the order of arrest to the plaintiff, or 
attorney by whom it is subscribed, with his return endorsed, and a certified 
copy of the undertaking of the bail. The plaintiff, within ten days there- 
after, may serve upon the Sheriff or Constable a notice that he does not 
accept the bail, or he shall be deemed to have accepted it, and the Sheriff or 
Constable shall be exonerated from liability. 

Civ. Pro., '12, § 243 ; Civ. Pro., '02, § 213 ; 1870, XIV, § 215. 

(456) § 16. Notice of Justification — ^new Bail. — On the receipt of 
such notice, the Sheriff or Constable, or defendant, may, within ten days 
thereafter, give to the plaintiff or attorney by whom the order of arrest 
is subscribed, notice of the justification of the same or other bail (specify- 
ing the places of residence and occupation of the latter) before a Judge or 
Clerk of the Court, at a specified time and place; the time to be not less 
than five nor more than ten days thereafter. In case other bail be given, 
there shall be a new undertaking in the form prescribed Section 450. 

Civ. Pro., '12, § 244 ; Civ. Pro., '02, § 214 ; 1870, XIV, § 216. 

(457) § 17. Qualification of Bail. — The qualification of bail must be 
as follows: 

1. Each of them must be a resident and householder, or freeholder, 
within the State. 

2. They must each be worth the amount specified in the order of arrest, 
exclusive of property exempt from execution; but the Judge or Clerk of 
the Court, on justification, may allow more than two bail to justify sever- 
ally in amounts less than that expressed in the order, if the whole justifica- 
tion be equivalent to that of two sufficient bail. 

Civ. Pro., '12, § 245; Civ. Pro., '02, §215; 1870, XIV, § 217. 

(458) § 18. Justification of Bail. — For the purpose of justification, 
each of the bail shall attend before the Judge or Clerk of the Court at the 
time and place mentioned in the notice, and may be examined, on oath, on 
the part of the plaintiff, touching his sufficiency, in such manner as the 
Judge or Clerk of the Court, in his discretion, may think proper. The 
examination shall be reduced to writing, and subscribed by the bail, if 
required by the plaintiff. 

Civ. Pro., '12, § 246; Civ. Pro., '02, § 216; 1870, XIV, § 218. 

(459) § 19. Allowance of Bail. — If the Judge or Clerk of the Court 
find the bail sufficient, he shall annex the examination to the undertaking, 
endorse his allowance thereon, and cause them to be filed in the office of the 
Clerk ; and the Sheriff shall thereupon, be exonerated from liability. 

Civ. Pro., '12, § 247 ; Civ. Pro., '02, § 217 ; 1870 XIV, § 219. 



OF SOUTH CAROLINA 175 

(460) § 20. Deposit in Lieu of Bail. — The defendant may, at the time 
of his arrest, instead of giving bail, deposit with the Sheriff or Constable 
the amount mentioned in the order. The Sheriff shall thereupon give the 
defendant a certificate of the deposit, and the defendant shall be discharged 
out of custody. 

Civ. Pro., '12, § 24S; Civ. Pro., '02, § 218; 1870, XIV, § 220. 

(461) § 21. Payment of Deposit Into Court.— The Sheriff or Con- 
stable shall, within four days after the deposit, pay the same into Court, 
and shall take from the officer receiving the same two certificates of such 
payment, the one of which he shall deliver to the plaintiff, and the other to 
the defendant. For any default in making such payment, the same pro- 
ceedings may be had on the official bond of the Sheriff or Constable, to 
collect the sum deposited, as in other cases of delinquency. 

Civ. Pro., '12, § 249 ; Civ. Pro., '02, § 219 ; 1870, XIV, § 221. 

(462) § 22. Substituting Bail for Deposit. — If money be deposited, as 
provided in the last two Sections, bail may be given and justified upon 
notice, as prescribed in Section 456, any time before judgment ; and there- 
upon the Judge, before whom the justification is had, shall direct, in the 
order of allowance, that the money deposited be refunded by the Sheriff 
or Constable to the defendant, and it shall be refunded accordingly. 

Civ. Pro., '12, § 250; Civ. Pro., '02, § 220; 1S70, XIV, § 222. 

(463) § 23. Deposit — How Disposed of After Judgment in the Action. 

— Where money shall have been so deposited, if it remain on deposit at 
the time of an order or judgment for the payment of money to the plaintiff, 
the Clerk shall, under the direction of the Court, apply the same to the 
satisfaction thereof, and, after satisfying the judgment, shall refund the 
surplus, if any, to the defendant. If the judgment be in favor of the 
defendant, the Clerk shall refund to him the whole sum deposited and 
remaining unapplied. 

Civ. Pro., '12, § 2.51 ; Civ. Pro., '02, § 221 ; 1870, XIV, § 223. 

(464) § 24. Sheriff — When Liability as Bail. — If, after being arrested, 
the defendant escape or be rescued, or bail be not given or justified, or a 
deposit be not made instead thereof, the Sheriff or Constable shall himself 
be liable as bail. But he may discharge himself from such liability by the 
giving and justification of bail, as provided in Sections 456, 457, 458 and 
459, at any time before process against the person of the defendant to 
enforce an order or judgment in the action. 

Civ. Pro., '12, § 252 ; Civ. Pro., '02, § 222 ; 1870, XIV, § 224. 

(465) § 25. Proceedings on Judgment Against Sheriff. — ^If a judge- 
ment be recovered against the Sheriff or Constable, upon his liability as 
bail, and an execution thereon be returned unsatisfied, in whole or in part, 
the same proceedings may be had on the official bond of the Sheriff or Con- 
stable, to collect the deficiency, as in other cases of delinquency. 

Civ. Pro., '12, § 253 ; Civ. Pro., '02, § 223 ; 1870, XIV, § 225. 



176 CODE OF CIVIL PROCEDURE 

(466) § 26. Bail Liable to Sheriff. — The bail taken upon the arrest 
shall, unless they justify, or other bail be given or justified, be liable to the 
Sheriff or Constable by action for damages which he may sustain by reason 
of such omission. 

Civ. Pro., '12, § 254 ; Oiv. Pro., '02, § 224 ; 1870, XIV, § 226. 

(467) § 27. Vacating Order of Arrest or Reducing Bail. — A defend- 
ant arrested may, at any time before judgment, apply, on motion, to vacate 
the order of arrest, or to reduce the amount of bail. 

Civ. Pro., '12, § 255 ; Civ. Pro., '02, § 225 ; 1870, XIV, § 227. 

(468) § 28. Affidavits on Motion to Vacate Order of Arrest or Reduce 
Bail. — If the motion be made upon afiidavits on the part of the defendant, 
but not otherwise, the plaintiff may oppose the same by affidavits, or other 
proofs, in addition to those on which the order of arrest was made. 

Civ. Pro., '12, § 256 ; Civ. Pro., '02, § 226 ; 1870, XIV, § 228. 



CHAPTER II. 

Claim and Delivery of Personal Property. 

(469) § 1. Claim and Delivery of Personal Property. — The plain- 
tiff, in an action to recover the possession of personal property, may, 
at the time of issuing the summons, or at any time before answer, claim the 
immediate delivery of such property, as provided in this Chapter. 

Oiv. Pro., '12, § 257 ; Civ. Pro., '02, § 227 ; 1870, XIV, § 229. 

Vance v. Vandercook Co., 170 U. S. 473. 

Claim and delivery is a civil action, subject to the same rules as other civil actions. Jones v. 
Brown, 57 S. C. 14, 35 S. E. 397. 

The fact that defendant has not possession does not prevent recovery of damages for the 
illegal taking of the property. Segars v. Segars, 82 S. C. 196, 63 S. E. 891. 

Claim and delivery combines the two actions of replevin and trover. Reynolds v. Philips, 
72 S. O. 34. 51 S. E. 523. 

Punitive damages not allowable. Tittle v. Kennedy, 71 S. C. 1, 50 S. E. 544, 4 Am. & 
Eng. Ann. Cas. 68. 

Claim and delivery is a purely legal action. Clerks' Union v. Knights of Columbus, 70 
S. C. 547, 50 S. E. 206; Cannon v. Dean, 80 S. C. 557,_ 61 S. E. 1012. 

When equitable defense may be set up to claim and delivery. Sparks v. Green, 69 S. 0. 226, 
48 S. E. 6'1; Cannon v. Dean, 80 S. C. 557, 61 S. E. 1012. 

In claim and delivery to recover property seized under dispensary law, State is not a 
necessary party. Jaro v. Holstein, 73 S. C. Ill, S. E. 870. 

Action by pledgor against pledgee. Gregg v. Bank of Columbia, 72 S. C. 458, 52 S. E. 195, 
110 Am. St. Rep. 633. / 

Description of the property. Phoenix Furniture Co. v. Jaudon, 75 S. C. 229, 55 S. E. 308; 
Bossard ■;;. Vaughn, 68 S. C. 96, 46 S. E. 523. See § 321, as amended, in regard to punitive 



(470) § 2. Affidavit and Its Requisites. — Where a delivery is claimed, 
an affidavit must be made by the plaintiff, or by some one in his behalf, 
showing : 

1. That the plaintiff is the owner of the property claimed (particularly 
describing it), or is lawfully entitled to* the possession thereof, by virtue of 
a special property therein, the facts in respect to which shall be set forth. 

Regardless of the pleadings alleging other sources of title, plaintiff may, under this Section, 
prove ownership by any testimony tending to show it. Osteen v. Lowry, 111 S, C. 217, 98 S. 
E. 244. 

2. That the property is wrongfully detained by the defendant. 

3. The alleged cause of the detention thereof, according to his best knowl- 
edge, information and belief. 



OF SOUTH CAROLINA 177 

4. That the same has not been taken for a tax, assessment, or fine, pur- 
suant to a Statute ; or seized under an execution or attachment against the 
property of the plaintiff ; or, if so seized, that it is, by Statute, exempt from 
such seizure. And, 

5. The actual value of the property. 

Civ. Pro., '12, § 258 ; Civ. Pro., '02, § 228 ; 1870, XIV, § 230. 

(471) § 3. Requisition to Sheriff to Take and Deliver Property. — The 

plaintiff may, thereupon, by endorsement, in writing, upon the affidavit, 
require the Sheriff of the county where the property claimed may be, to 
take the same from the defendant and deliver it to the plaintiff. 

Civ. Pro., '12, § 259 ; Civ. Pro., '02, § 229 ; 1870, XIV, § 231. 

Bardin v. Dratts, 10 S. 0. 493. 

(472) § 4. Security by Plaintiff. — Upon the receipt of the affidavit 
and notice, with a written undertaking executed by one or more sufficient 
sureties, approved by the Sheriff, to the effect that they are bound in 
double the value of the property, ,as stated in the affidavit for the prosecu- 
tion of the action, for the return of the property to the defendant, if return 
thereof be adjudged, and for the payment to him of such sum as may, for 
any cause, be recovered against the plaintiff, the Sheriff shall forthwith 
take the property described in the affidavit, if it be in the possession of the 
defendant or his agent, and retain it in his custody. He shall also, without 
delay, serve on the defendant a copy of the affidavit, notice, and under- 
taking, by delivering the same to him personally, if he can be found, or to 
his agent, from whose possession the property is taken, or, if neither can 
be found, by leaving them at the usual place of abode of either, with some 
person of suitable age and discretion. In case the plaintiff does not execute 
the required undertaking, the party having possession of the property shall 
retain the same until the determination of the suit. 

Civ. Pro., '12, § 260 ; Civ. Pro., '02, § 230 ; 1870, XIV, § 232 ; 1873, XV, 498. 

The undertaking on part of plaintiff must be executed by him. Polite v. Bero, 63 S. 0. 
209, 41 S. E. 305. 

(473) § 5. Exception to Sureties. — The defendant may, within three 
days after the service of a copy of the affidavit and undertaking, give notice 
to the Sheriff that he excepts to the sufficiency of the sureties. If he fail 
to do so, he shall be deemed to have waived all objections to them. When 
the defendant excepts, the sureties shall justify, on notice, in like manner 
as upon bail on arrest. And the Sheriff shall be responsible for the suffi- 
ciency of the sureties, until the objection to them is either waived, as above 
provided, or until they shall justify, or new sureties shall be substituted 
and justify. If the defendant except to the sureties, he cannot reclaim the 
property, as provided in the next Section. 

Civ. Pro., '12, § 261 ; Civ. Pro., '02, § 231 ; 1870, XIV, § 233. 

(474) § 6. Defendant — When Entitled to Re-Delivery. — At any time 
before the delivery of the property to the plaintiff, the defendant may, if 
he do not except to the sureties of the plaintiff, require the return thereof, 
upon giving to the Sheriff a written undertaking, executed by two or more 
sufficient sureties, to the effect that they are bound in double the value of 
the property, as stated in the affidavit of the plaintiff, for the delivery 

13 C C P 



178 CODE OF CIVIL PROCEDURE 

thereof to the plaintiff, if such delivery be adjudged, and for the payment 
to him of such sum as may, for any cause, be recovered against the defend- 
ant. If a return of the property be not so required within three days after 
the taking and service of notice to the defendant, it shall be delivered to 
the plaintiff, except as provided in Section 479. 
Civ. Pro., '12, § 262 ; Civ. Pro., '02, § 232 ; 1870, XIV. § 234. 

Judgrment having been rendered in the action in favor of plaintiff for damages, and not 
for delivery of the property, it vi^as sufficient proof of breach of the bond given by the defendant 
under this Section in suit thereon. Thompson v. Joplin, 12 S. C. 580. 

Tlie words "if such delivery be adjudged" mean adjudged by any competent authority. Elder 
V. Greene, 34 S. 0. 154, 13 S. E. 323. 

As to damages recoverable in claim and delivery. Vance v. Vandercook Co., No. 2 170 
U. S., 468, 42 L. Ed. 1111; Miami Power Co. v. Railroad Co., 4.7 S. C. 324, 25 S. E. 153; 
Loeb V. Mann, 39 S. C. 465, 18 S. E. 1; Lipscomb v. Tanner, 31 S. C. 49, 9 S. E. 733; 
Brock V. Bolton, 37 S. C. 40, 16 S. E. 370. 

The undertaking on part of the defendant here required need not be executed by him. 
Polite V. Bero, 63 S. C. 209, 41 S. E. 305. 

Sureties are bound for whatever money judgment is rendered against principal. Parish v. 
Smith, 66 S. C. 431, 45 S. E. 16. But such liability is reduced by what property is delivered 
to plaintiff under judgment. Parish v. Smith, 66 S. C. 424, 45 S. E. 16. 

Damages. Spears v. Field. 72 S. C. 395, 52 S. E. 44. 

Redelivery bond, given pursuant to this Section to secure the return of the property of 
the defendant, is breached when judgment is rendered for plaintiff. Bolt v. Milam, 110 S. C. 
399, 96 S. E. 614. 

(475) § 7. Justification of Defendant's Sureties. — The defendant's 
sureties, upon a notice to the plaintiff of not less than two or more than six 
days, shall justify before a Judge, Clerk of Court, or Magistrate, in the 
same manner as upon bail on arrest. Upon such justification, the Sheriff 
shall deliver the property to the defendant. The Sheriff shall be responsi- 
ble for the defendant's sureties until they justify, or until justification is 
completed or expressly waived, and may retain the property until that 
time; but if they, or others in their place, fail to justify at the time and 
place appointed, he shall deliver the property to the plaintiff. 

Civ. Pro., '12, § 263; Civ. Pro., '02, § 233; 1870, XIV, § 235. 

(476) § 8. Qualification and Justification of Sureties. — The qualifica- 
tions of sureties and their justification shall be as are prescribed by Sec- 
tions (457) and (458) in respect to bail upon an order of arrest. 

Civ. Pro., '12, § 264 ; Civ. Pro., '02, § 234 ; 1870, XIV, § 236. 

(477) § 9. Property— How Taken When Concealed in Building or 
Enclosure. — If the property, or any part thereof, be concealed in a build- 
ing or enclosure, the Sheriff shall publicly demand its delivery. If it be 
not delivered, he shall cause the building or enclosure to be broken open, 
and take the property into his possession ; and if necessary, he may call to 
his aid the power of his county. 

Civ. Pro., '12, § 265; Civ. Pro., '02, § 235; 1870, XIV, § 237. 

(478) § 10. Property — How Kept. — "When the Sheriff shall have taken 
property, as in this Chapter provided, he shall keep it in a secure place, 
and deliver it to the party entitled thereto, upon receiving his lawful fees 
for taking, and his necessary expenses for keeping, the same. 

Civ. Pro., '12, § 266 ; Civ. Pro., '02, § 236 ; 1870, XIV, § 238. 

(479) § 11. Claim of Property by Third Person — If the property 
taken be claimed by any other person than the defendant or his agent, and 
such person shall make affidavit of his title thereto, and right to the posses- 
sion thereof, stating the grounds of such right and title, and serve the same 



OF SOUTH CAROLINA 179 

upon the Sheriff, the Sheriff shall not be bound to keep the property, or 
deliver it to the plaintiff, unless the plaintiff, on demand of him or his 
agent, shall indemnify the Sheriff against such claim, by an undertaking, 
executed by two sufficient sureties, accompanied by their affidavit that they 
are each worth double the value of the property, as specified in the affidavit 
of the plaintiff, and are freeholders and householders within this State. 
And no claim to such property, by any other person than the defendant or 
his agent, shall be valid against the Sheriff, unless made as aforesaid ; and, 
notwithstanding such claim, when so made, he may retain the property a 
reasonable time to demand such indemnity. 

Civ. Pro., '12, § 267 ; Giv. Pro., '02, § 237 ; 1870, XIV, § 239. 

(480) § 12. Notice and Affidavit— When and Where to be Filed— The 

Sheriff shall file the notice and affidavit, with his proceedings thereon, with 

the Clerk of the Court in which the action is pending, within twenty days 

after taking the property mentioned therein. 

Civ. Pro., '12, § 268 ; Civ. Pro., '02, § 238 ; 1870, XIV, § 240. 

No penalty for failure to comply with this Section. Alexander v. Jamison, 56 S. C. 409, 
34 S. E. 695. 



CHAPTER m. 

Injunction. 

Article 1. Injunction — General Provisions, 179. 
Article 2. Injunction to Abate Certain Nuisances, 183. 



ARTICLE I. 

INJUNCTION— GENERAL PROVISIONS. 

(481) § 1. Writ of Injunction Abolished, and Order Substituted. 

— An order of injunction may be made by the Court of Common 
Pleas in which the action is brought, or by a Judge thereof, and in the 
absence from the circuit, or inability from any cause, of a Judge thereof, 
by a Judge of any other circuit, or a Justice of the Supreme Court. And 
by any Probate Judges in the cases provided in Section 171 of this Code 
of Procedure. 

Civ. Pro., '12, § 269 ; Civ. Pro., '02, § 239 ; 1870, XIV, § 241. 

Injunction against assessment of damages by arhitration. Greenville v. Earle, 80 S. C. 

321, 60 S. E. 1117. ^ , Tx . I.- ^ 1 I.- Qo a P 

Against enforcing unconstitutional ordinance. Sperry and Hutchison v. OoiumDia, »^ ft. ^. 

Against trespass should establish accurately the line beyond which defendant must not go. 

Wood V. Pacolet Mfg. Co., 80 S. C. 52, 61 S. E 95 o« c- r- orh Rn « T? rt^ 

Against trespass or nuisance. Bratton v. Catawba Power Co., 80 S. C. 260, bO b. Hj. o//>- 
Iniunction against continuous trespass; defense of estoppel and purchaser for value equitable 

issues. Atlantic and Charlotte Air Line Ry. v. Victor Mfg. Co.. 79 S. 0. 266, 60 S E. 675. 
Against commission of crime — statutory nuisance. State v. Riddock, 78 S. O. 286, 58 b. Ji.. 

803 

Against new county election. Lamar v. Croft, 73 S. C. 411, 53 S. E. 540. ^ 

Does not apply to action to determine right to public office. Sanders v. Belue, <8 b. C. i/», 

ro d *R^ 7fi9 

Against State Board at suit of private citizen. Duncan v. State Board of Education, 74 

S. C. 560, 54 S. C. 760. ^ , .nr. ct, , tvtj. n „ 

Injunction against illegal tax where there is no remedy at law. Ware bhoals Mtg. oo. v. 

Against taking of land by city. Kendall v. City Counsel. 74 S. C. 539, 54 S. E. 777. 
Taking land or interfering with fence under claim of highway. Note 7 L. K. A. (^. b.;, t>a. 
Cannot enjoin act already committed. Spencer v. Mahon, 75 S. C. 233, 55 S. E. 321; Kiley v. 
Greenwood, 72 S. C. 91, 51 S. E. 532, 110 Am. St. Rep. 592. 



180 CODE OF CIVIL PROCEDURE 

Injunction against distress for rent refused. Evans v. Mayes, 81 S. C. 192, 62 S. E. 207. 
Acaiust proceedings for condemnation. C. & W. C. R. R. v. Garlington, 74 S. C. 161, 54 S. 
E.' 208; "Columbia Water Power Co. v. Nunamaker, 73 S. C. 558, 53 S. E. 996. 

May be granted against criminal prosecutions under a statute clearly void, where irreparable 
injury would result to property rights from its enforcement. Cain v. Daly, 74 S. C. 480, 
55 S. E. 110; Grant v. City Council, 82 S. C. 268, 64 S. E. 388. 

In aid of suit for alimony. Thomason v. Thomason, 73 S. C. 129, 52 S. E. 870. 

Against continuous trespass and waste. Crawford v. A. C. L. Railroad, 77 S. C. 81, 57 S. E. 
670. See, also. Alderman v. Wilson, 69 S. C. 156, 48 S. E. 85; Marion County Lumber Co. v. 
Tilghman, 75 S. C. 224, 55 S. E. 337. 

Temporary injunction proper where prima facie case is shown. Wilder v. Alderman, 74 
S. C. 178, 53 S. E. 950. 

Where defendant has possession as a tenant he cannot be enjoined from cultivating the 
land, under allegation that he is a trespasser. Montague v. Hood, 78 S. C. 222, 58 S. E. 767. 

Injunction against illegal act of public officers. Amerker v. Taylor, 81 S. 0. 163, 62 S. E. 7. 

Circuit Judge at chambers has power to grant temporary injunction order on ex parte 
application. Andrews v. Real Estate Co., 87 S. C. 301. 

(482) § 2. Temporary Injunction — In What Cases Granted. — 1. Where 
it shall appear by the complaint that the plaintiff is entitled to the relief 
demanded, and such relief, or any part thereof, consists in restraining the 
commission or continuance of some act, the commission or continuance of 
which, during the litigation, would produce injury to the plaintiff; or, 
2. When, during the litigation, it shall appear that the defendant is doing, 
or threatens, or is about to do, or procuring or suffering some act to be done, 
in violation of the plaintiff's rights respecting the subject of the action, and 
tending to render the judgment ineffectual, a temporary injunction may be 
granted to restrain such act. 3. And where, during the pendency of an 
action, it shall appear by affidavit that the defendant threatens or is about 
to remove or dispose of his property, with intent to defraud his creditors, 
a temporary injunction may be granted to restrain such removal or dispo- 
sition. 

Civ. Pro., '12, § 270; Civ. Pro., '02, § 240; 1870, XIV, § 242. 

A perpetual injunction should not be granted at chambers. Hornesby v. Burdell, 9 S. 0. 
303. When temporary injunction should not be dissolved on affidavits. Cudd v. Calvert, 54 
S. C. 457, 32 S. E. 503. As to granting injunction against continuous trespasses. McClellan v. 
Taylor, 54 S. C. 430, 32 S. E. 527; Ragsdale v. R. Co., 60 S. C. 381, 38 S. E. 612. 

The sole object of this Section is to preserve the subject of controversy in the condition in 
which it is when the order is made until an opportunity is afforded for a full and deliberate 
investigation. It cannot be used to take property out of the possession of one and put it into 
that of another. Pelzer v. Hughes, 27 S. C. 408, 3 S. E. 781. Williams v. Jones & Amerman, 
92 S. C. 347. Unless the party acquired the possession in breach of the order of injunction. 
Columbia Water Power Co. v. Columbia, 4 S. C. 388. Order for temporary injunction may be 
granted without notice to the defendant. Watson v. Bank, 5 S. C. 159. And is not void 
because an undertaking: was not required of the plaintiff. lb. 

Restraining orders should not be issued against de facto officers in actions to try title to 
office. Bruce v. Rice, 66 S. C. 1, 44 S. E. 80; State v. Rice, 67 S. C. 239. 

Where action is solely for injunction, and temporary injunction is essential to protection of 
legal right, error of law to refuse temporary injunction. , Alderman Sons Co. v. Wilson, 69 S. 
C. 159, 48 S. E. 85. 

A going concern should not be stopped before it is determined to be a nuisance. Williams ■;;. 
Jones, 62 S. C. 472, 40 S. E. 881. The issue as to existence of nuisance, sought to be enjoined, 
should be tried by a jury. Lipscomb v. Littlejohn, 63 S. C. 38, 40 S. E. 1023. 

Injunction will not lie against an election where no property rights are involved and there 
is an adequate remedy at law. Little v. Barksdale, 81 S. C. 392, 63 S. E. 308. 

Where damages for the future have been recovered injured party cannot claim an injunction. 
Mason v. Apalache Mills, 81 S. C. 554, 62 S. E. 399. 

(483) § 3. At What Time Injunction May Be Granted— Copy of Affi- 
davit to Be Served. — The injunction may be granted at the time of com- 
mencing the action, or at any time afterwards, before judgment, upon its 
appearing satisfactorily to the Court or Judge, by the affidavit of the plain- 
tiff or of any other person that sufficient grounds exist therefor. A copy 
of the affidavit must be served with the injunction. 

Civ. Pro., '12, § 271 ; Civ. Pro., '02, § 241 ; 1870, XIV, § 243. 

Upon such application for injunction the Judge may consider the merits of _ the case in 
order to determine whether it should be granted, and his refusal is not a decision upon the 
merits. Sease v. Dobson, 34 S. C. 345, 13 S. E. 530. 

The temporary injunction, except as provided in 485, may be granted on an ex parte 
application to preserve the status quo. Meinhard v. Toungblood, 37 S. 0. 223, 15 S. E. 947. 
Where the affidavits are sufficient the complaint need not be verified. Ih. 



OF SOUTH CAROLINA 181 

Jurisdiction to issue temporary injunction rests on status of case at its date and not at 
time of issuance of rule to show cause and restraining order. Circuit Judge has jurisdiction 
to grant temporary injunction without notice and before summons is served or lodged, same to 
be served in reasonable time with summons. Jordan v. Wilson, 69 S. C. 260, 48 S. E. 224. 

Injunction against nuisance. State v. Chicco, 82 S. 0. 122, 63 S. E. 306; State v. Social 
Club, 82 S. C. 142, 63 S. E. 545; State v. Columbia Water Power Co., 82 S. C. 181, 63 
S. E. 884. 129 Am. St. Rep. 876, 17 Am. & Eng. Ann. Cas. 343, 22 L. R. A. N. S., 435n. 

(484) § 4. Injunction After Answer. — An injunction shall not be 
allowed after the defendant shall have answered, unless upon notice or 
upon an order to show cause; but in such case the defendant may be 
restrained until the decision of the Court or Judge granting or refusing 
the injunction. 

Civ. Pro., '12, § 272; Civ. Pro., '02, § 242; 1870, XIV, § 244. 

Andrews v. Real Estate Co., 87 S. C. 306; Jordan v. Wilson, 6 S. C. 258, 48 S. E. 224. 

(485) § 5. Regulations for Granting Injunctions to Stay Certain 
Sales. — An injunction to stay an execution or judicial sale shall not be 
allowed unless upon notice of at least four days to the adverse party or to 
his attorney, unless the Court or Judge, before whom the application is 
made, shall prescribe a shorter time, nor shall a motion for such an injunc- 
tion be heard less than five days before the time fixed for such sale, unless 
the Court or Judge, upon cause being shown, shall order otherwise. And 
in all cases the decision of the Court or Judge upon such a motion shall be 
filed with the Clerk of the Court for the county before the time fixed for 
such sale, otherwise the sale shall not be stayed : Provided, however, That 
when an execution or judicial sale is stayed by injunction, the time of the 
existence of such stay shall not be deemed or taken to be a part of the 
time of the existence of the active energy of such execution, or a part of 
the time of the existence of the lien of any judgment or decree, whether such 
stay be obtained before or after the passage of this Section. 

Civ. Pro., '12, § 273 ; Civ. Pro., '02, § 242a ; 1899, XXIII, § 43. 

As to eflEect of injunction on leave to issue execution. Ex parte Graham, 54 S. C. 163, 32 S. E. 67. 

(486) § 6. Security Upon Injunction — Damages — How Ascertained. 

— When no provision is made by Statute as to security upon an injunction, 
the Court or Judge shall require a written undertaking on the part of the 
plaintiff, with or without sureties, to the effect that the plaintiff will pay 
to the party enjoined such damages, not exceeding an amount to be speci- 
fied, as he may sustain by reason of the injunction, if the Court shall finally 
decide that the plaintiff was not entitled thereto. The damages may be 
ascertained by a reference or otherwise, as the Court shall direct. 
Civ. Pro., '12, § 274 ; Civ. Pro., '02, § 243 ; 1870, XIV, § 245. 

The Judge may, in his discretion, dispense with sureties on the undertaking. Meinhard v. 
Strickland, 29 S. C. 491, 7 S. E. 838. The undertaking may be filed after the granting of 
the injunction. Meinhard v. Youngblood, 37 S. C. 231, 16 S. B. 771. The words requiring 
an undertaking are plain and mandatory, and the Court should require one. Smith v. 
Smith, 51 S. C. 379, 29 S. E. 227. But the failure to require the undertaking is not a 
jurisdictional defect. Watson v. Bank, 5 S. C. 177. 

Such damages may be ascertained by a reference. Hill v. Thomas, 19 S. C. 230. Counsel 
fee for single act of dissolving injunction is allowable as part of damages ; but a fee for 
general services in defending case is not. Livingston v. Exum, 19 S. C. 223 : Hill v. Thomas, 
19 S. C. 230. Not determined whether costs are a part of the damages. Hill v. Thomas, 19 
S. 0. 230. But creditor is allowed interest on debt enjoined, as part of his damages. lb. 

In an action by the owner of land for rents and profits received by the defendant, the plaintiff 
is not precluded from recovering by her failure to assert her claim in a previous action to 
restrain her from taking possession of the land. Rabb v. Patterson, 42 S. 0. 528. 20 S. E. 540. 

This Section requires an undertaking that plaintiff would pay damages, if the Court 
finally decides plaintiff not entitled to injunction. Lewis v. Jones, 65 S. 0. 159, 43 S. E. 525. 

Undertaking required. Creech v. Long, 72 S. C. 31, 51 S. E. 614: Grant v. Citv Council, 82 
S. C. 268, 64 S. E. 388; Ex parte Zeigler, 83 S. 0. 78, 64 S. E. 513, 916, 21 L. R. A., 
N. S. 1005n. In condemnation proceedings. Columbia Water Power Co. v. Nunamaker, 73 S. C. 



182 CODE OF CIVIL PROCEDURE 

550. 53 S. E. 996. Consequential damages must be shown. Batson v. "Water Co., 73 S. C. 378, 
53 S. E. 500. 

Jordan v. Wilson, 69 S. C. 55. 

(487) § 7. Order to Show Cause Why Injunction Should Not Be 
Granted. — If the Court or Judge deems it proper that the defendant, or 
any of several defendants, should be heard before granting the injunction, 
an order may be made, requiring cause to be shown, at a specified time and 
place, why the injunction should not be granted ; and the defendant may, in 
the meantime, be restrained. 

Civ. Pro., '12, § 275; Civ. Pro., '02, § 244; 1870, XIV, § 246. 

Circuit Judge may grant restraining order pending return to show cause without requiring 
undertaking. Creech v. Long, 72 S. C. 31, 51 S. E. 614. 

Jordan v. Wilson, 69 S. C. 258, 48 S. E. 224. 

Power to grant temporary injunction at chambers on ex parte application. Andrews v. 
Real Estate Co., 87 S. C. 306. 

(488) § 8. Security Upon Injunction to Suspend Business of Corpora- 
tion. — An injunction to suspend the general and ordinary business of a 
corporation shall not be granted except by the Court or a Judge thereof. 
Nor shall it be granted without due notice of the application therefor, to 
the proper officers of the corporation, except where the State is a party to 
the proceeding, and except in proceedings to enforce the liability of stock- 
holders in corporations and associations for banking purposes, as such pro- 
ceedings are or shall be provided by law, unless the plaintiff shall give a 
written undertaking, executed by two sufficient sureties, to be approved 
by the Court or Judge, to the effect that the plaintiff will pay all damages, 
not exceeding the sum to be mentioned in the undertaking, which such 
corporation may sustain by reason of the injunction, if the Court shall 
finally decide that the plaintiff was not entitled thereto. The damages may 
be ascertained by a reference or otherwise, as the Court shall direct. 

Civ. Pro., '32, § 276; Civ. Pro., '02, § 245; 1870, XIV, § 247. 

There is no statute requiring plaintiff to give bond equal in amount to assets of corporation. 
Andrews v. Real Estate Co., 87 S. C. 301. 

(489) § 9. Motion to Vacate or Modify Injunction. — If the injunction 
be granted by the Court, or a Judge thereof, without notice, the defendant 
at any time before the trial, may apply, upon notice to the Court, or a 
Judge thereof, in which the action is brought, to vacate or modify the same. 
The application may be made upon the complaints and the affidavits on 
which injunction was granted, or upon affidavits on the part of the defend- 
ant, with or without the answer. 

Civ. Pro., '12, § 277 ; Civ. Pro., '02, § 246 ; 1870, XIV, § 248. 

Judge cannot review his own order, made on hearing after notice, granting restraining order. 
Jordan v. Wilson, 69 S. C. 258, 48 S. E. 224. 

Temporary injunction granted ex parte, dissolved on notice. Northrop v. Simpson, 69 S. C. 
553, 48 S. E. 613. 

Notice of motion. Bank v. Sprunt, 86 S. C. 10. 

Where action is brought solely to obtain injunction. Court should entertain motion to dissolve 
a temporary injunction and should consider answer and nroposed affidavits of defendants in 
determining whether injunction was reasonably essential. Kelly v. Tiner, 86 S. C. 160, 68 
S. E. 465. 

Andrews v. Real Estate Co., 87 S. C. 306. 

On motion to dissolve a temporary injunction, the defendant having been heard on rule 
to show caTise, the Circuit Court has no Jurisdiction to dismiss the complaint on the ground 
that it does not state facts sufficient to constitute a cause of action as that question was 
necessarily decided in granting the injunction and is res judicata except on the merits. 

Montgomery v. Robinson, 93 S. 0. 247, 76 S. E. 188. 

(490) § 10. Affidavits on Motion. — If the application be made upon 
affidavits on the part of the defendant, but not otherwise, the plaintiff may 



OF SOUTH CAROLINA 183 

oppose the same by affidavits or other proofs, in addition to those on which 

the injunction was granted. 

Civ. Pro., '12, § 278; Civ. Pro., '02, § 247; 1870, XIV, § 249. 

A Circuit Judge can dissolve a temporary iniunction granted by his predecessor until th? 
further order of the Court. Bouknight v. Davis, 33 S. C. 410, 13 S. E. 96. When it 
should not be dissolved. Cudd r. Calvert, 54 S. C. 457, 32 S. E. 503. 



ARTICLE II. 

INJUNCTION TO ABATE CERTAIN NUISANCES. 

(491) § 1. Use of Buildings ar Places for Lewdness Declared a 
Nuisance. — Whosoever shall erect, establish, continue, maintain, use, own, 
occupy, lease, or re-lease any building, erection or place used for the pur- 
pose of lewdness, assignation, or prostitution in the State of South Caro- 
lina, is guilty of a nuisance, and the building, erection, or place, or the 
ground itself in or upon which such lewdness, assignation, or prostitution 
is conducted, permitted or carried on, continued, or exists, and the furni- 
ture, fixtures, musical instruments and movable property used in conduct- 
ing or maintaining such nuisance, are also declared a nuisance, and shall be 
enjoined and abated as hereinafter provided. 

1918, XXX, 814. 

(492) § 2. Attorney General, Solicitor or Citizen May Bring Suit for 
Injunction. — Whenever a nuisance is kept, maintained, or exists, as de- 
fined in this Article, the Attorney General of the State, or the Solicitor of 
the Judicial District where such nuisance is kept, or any citizen of the 
State may maintain an action in equity in the name of the State, upon the 
relation of such Attorney General of the State, or Solicitor, or citizen, to 
perpetually enjoin said nuisance, the person or persons conducting or 
maintaining the same, and the owner or agent of the building or ground 
upon which said nuisance exists. In such action the Court, or the Judge in 
vacation, shall, upon the presentation of a petition therefor, alleging that 
the nuisance complained of exists, allow a temporary writ of injunction, 
without bond, if the existence of such nuisance shall be made to appear to 
the satisfaction of the Court or Judge by evidence in the form of affidavits, 
depositions, oral testimony, or otherwise, as the complainant may elect, 
unless the Court or Judge by previous order shall have directed the form 
and manner in which it shall be presented. Three days notice in writing 
shall be given the defendant of the hearing of the application, and if then 
continued at his instance the writ as prayed shall be granted as a matter 
of course. When an injunction has been granted it shall be binding on the 
defendant throughout the State, and any violation of the provisions of 
injunction herein provided shall be a contempt as,, hereinafter provided. 

1918, XXX, 814. 

(493) § 3. Trial. — The action, when brought, shall be triable at the 
first term of Court, after due and timely service of the notice has been 
given, and in such action evidence of the general reputation of the place 
shall be competent for the purpose of proving the existence of said nuisance. 



184 CODE OF CIVIL PROCEDURE 

If the complaint is filed by a citizen or corporation, it shall not be dis- 
missed, except upon a sworn statement made by the complainant and his 
or its attorney, setting forth the reason why the action should be dismissed, 
and the dismissal approved by the Attorney General of the State, or by 
said Solicitor, in writing or in open court. If the Court is of the opinion 
that the action ought not to be dismissed, he may direct the Attorney Gen- 
eral, or Solicitor, to prosecute said action to judgment, and if the action is 
continued more than one term of Court, any citizen of the State may be 
substituted for the complaining party, and prosecute said action to judg- 
ment. If the action is brought by a citizen or a corporation, and the Court 
finds there was no reasonable ground or cause for said action, the costs may 
be taxed to such citizen or corporation. 
1918, XXX, 815. 

(494) § 4. Violation of Injunction. — In case of the violation of any 
injunction granted under the provisions of this Article, the Court, or, in 
vacation, a Judge thereof, may summarily try and punish the offender. 
The proceedings shall be commenced by filing with the Clerk of the Court 
a complaint, under oath, setting out the alleged facts constituting such 
violation, upon which the Court or Judge shall cause a warrant to issue, 
under which the defendant shall be arrested. The trial may be had upon 
affidavits or either party may at any stage of the proceedings demand the 
production and oral examination of the witnesses. A party found guilty 
of contempt under the provisions of this Section shall be punished by a 
fine of not less than $200.00 nor more than $1,000.00, or by imprisonment 
in the county jail or State Penitentiary not less than three months nor more 
than six months, or by both fine and imprisonment, 

1918, XXX, 815. 

(495) § 5. Abatement. — If the existence of the nuisance be estab- 
lished in an action, as provided in this Article, or in a criminal proceeding, 
an order of abatement shall be entered as part of the judgment in the case, 
which order shall direct the removal from the building or place of all fix- 
tures, furniture, musical instruments, or movable property used in con- 
ducting the nuisance, and shall direct the sale thereof in the manner pro- 
vided for the sale of chattels under execution, and shall direct the effectual 
closing of the building or place against its use for any purpose, and so 
keeping it closed for a period of one year, unless sooner released. If any 
person shall break and enter or use a building, erection, or place so directed 
to be closed, he shall be punished as for contempt, as provided in the pre- 
ceding Section. 

1918, XXX, 816. 

(496) § 6. When County Attorney or Solicitor to Enforce This Act. — 

In case the existence of such nuisance is established in a criminal proceed- 
ing in a Court not having equitable jurisdiction, it shall be the duty of the 
County Attorney or Solicitor of the District to proceed promptly under 
this Article to enforce the provisions and penalties thereof, and the find- 
ing of the defendant guilty in such criminal proceedings, unless reversed 
or set aside, shall be conclusive as against such defendant as to the existence 



OF SOUTH CAROLINA 185 

of the nuisance. The proceeds of the sale of the personal property, as pro- 
vided in the preceding Section, shall be applied in the payment of the costs 
of the action and abatement, and the balance, if any, shall be paid to the 
defendant. 

1918, XXX, 816. 

(497) § 7. Owner May Secure Release of Building. — If the owner 
appears and pays all costs of the proceeding and files a bond, with sureties 
to be approved by the Court, in the full value of the property, to be ascer- 
tained by the Court, or, in vacation, by the County Auditor's records, con- 
ditional that he will immediately abate said nuisance and prevent the same 
from being established or kept therein within a period of one year there- 
after, the Court, or, in vacation, the Judge, may, if satisfied of his good 
faith, order the premises closed under the order of abatement to be deliv- 
ered to said owner, and said order of abatement cancelled so far as the same 
may relate to the said party ; and if the proceeding be an action in equity 
and said bond be given, and costs therein paid before judgment and order 
of abatement, the action shall be thereby abated as to said building only. 
The release of the property under the provisions of this Section shall not 
release it from judgment, lien, penalty or liability to which it may be sub- 
ject by law. 

1918, XXX, 816. 

(498) § 8. Notice to Owner Before Action Against Him. — No proceed- 
ing against the owner of the real estate shall be commenced hereunder 
except ten days written notice be given to the said owner, or his agent, by 
the prosecuting attorney, and upon his failure thereafter to abate the 
nuisance. 

1918, XXX, 817. 

(499) § 9. Immunity of Witnesses. — The Solicitor, Attorney General, 
or other attorney representing the prosecution for violation of this Statute, 
with the approval of the Court, may grant immunity to any witness called 
to testify in behalf of the prosecution. 

1918, XXX, 817. 



CHAPTER IV. 

Attachment. 

(500) § 1. Property of Foreign Corporations, and of Nonresi- 
dent, Absconding or Concealed Defendants, May Be Attached. — In any 

action arising for the recovery of money, or for the recovery of property, 
whether real or personal, and damages for the wrongful conversion and 
detention of personal property, or an action for the recovery of damages 
for injury done to either person or property, or against a corporation 
created by or under the laws of any other State, government or country, or 
against a defendant who is not a resident of this State, or against the mas- 
ter, captain or agent of any sailing vessel entering any of the ports of this 
State for pilotage services rendered such vessel, or against a defendant who 
has absconded or concealed himself, or whenever any person or corporation 



186 CODE OF CIVIL PROCEDURE 

is about to remove any of his or its property, from this State, or has 
assigned, disposed of, or secreted, or is about to assign, dispose of, or secrete, 
any of his or its property, with intent to defraud creditors, as hereinafter 
mentioned, the plaintiff, at the time of issuing the summons, or any time 
afterwards, may have the property of such defendant or corporation 
attached, in the manner hereinafter prescribed, as a security for the satis- 
faction of such judgment as the plaintiff may recover ; and for the purposes 
of this Section an action shall be deemed commenced when the summons is 
issued : Provided, however, That personal service of such summons shall be 
made or publication thereof commenced within thirty days. 

Civ. Pro., '12, § 279; Civ. Pro., '02, § 248; 1870, XIV, § 250; 1879, XVII, 23; 1897, 
XXII, 450. 

An action commenced by attachment of property against a nonresident in which the defendant 
is not personally served, and does not appear, is a proceeding in rem. Stanley v. Stanley, 35 
S. C. 94, 14 S. E. 675; Gibson v. Everett, 41 S. C. 22, 19 S. E. 286. 

The right to attachment in an action on contract is governed by the lex fori, and not by the 
lex loci contracUts. Pegram v. Williams, 4 Rich. L 219. A nonresident creditor may proceed 
by attachment on a cause of action arising out of this State. Sheldon v. Blanvelt, 29 S. 0. 
453, 7 S. E. 593, 1 L. R. A., N. S., C85. So in causes of action between nonresidents 
arising out of the State. Ex parte Perry Stove Co., 43 S. 0. 176, 20 S. E. 980; Gibson v. 
Everett, 41 S. C. 23, 19 S. E. 286. Attachment will not be granted in an action for slander. 
Addison v. Siijette. 50 S. 0. 192, 28 S. E. 948; Sargent v. Helmbold, Harp., 219. It will 
be granted in an action to enforce collection of debt and set aside a fraudulent conveyance 
of the debtor's property. Bank v. Stelling, 31 S. C. 360, 9 S. E. 1028; Ferst v. Powers, 58 
S. C. 411, 36 S. E. 749. As to grounds of attachment; nonresidence, what is. Munroe v. 
Williams, 37 S. C. 81, 16 S. E. 533, 19 L. R. A., 665. Removal of property. Sloan v. 
Bangs, 10 Rich., 15. Fraudulent transfer and disposition of property. Claussen v. Pultz, 13 
S. C. 16; Tabb & Jenkins Hardware Co. v. Gelzer, 43 S. C, 342, 21 S. E. 261; Myers v. 
Whiteheart, 24 S. C. 196; Wando Phosphate Co. v. Rosenberg, 31 S. C. 301, 9 S. E. 969; 
Guckenheimer v. Libbey, 42 S. C. 162, 19 S. E. 999; Kerchner v. McCormac, 25 S. 0. 461; 
Meinhard v. Young-blood, 41 S. C. 312, 19 S. E. 675; Grollman v. Lipsitz, 43 S. C. 329, 21 
S. E. 272: Ferst v. Powers, 58 S. C. 398, 36 S. E. 744; Bray Clothing Co. v. Shealey, 53 
S. C. 12, 30 S. E. 620; Ex parte Chase, 62 S. C. 353, 38 S. E. 718. Effect of Bankruptcy law. lb. 

Where action fails for want of jurisdiction, attachment therein falls with it, being a provisional 
remedy in aid of an action. Central Railroad Co. v. Georgia Constr. Co., 32 S. C. 319, 11 S. E. 192. 

The attachment is not void because it bears date before the date of the summons ; the 
existence of the summons at date of attachment may be shown aliunde. Smith v. Walker, 6 
S. C. 169. Nor void when the summons bears same date as attachment but Sheriff's endorse- 
ment shows service next day. Cureton v. Dargan, 12 S. C. 122. The summons is considered 
issued as soon as it is made out and application for attachment founded on it. lb. 

Attachment against foreign corporation. Williamson v. Association, 54 S. C. 582, 32 S. E. 
765. 

The property of a foreign corporation may be attached in an action for unliquidated 
damages, sounding in tort. Chitty v. Pennsylvania R. Co., 62 S. C. 526, 40 S. E. 944. 

Our Statute provides not only legal remedies of attachment and garnishment, but method 
of actual seizure, service of writ, etc., quasi ownership, and appropriate suits to subject any 
kind of property interest equitable as well as legal to the attachment. Pelzer Mfg. Co. v. 
Pitts & Hartzog, 76 S. C. 358, 57 S. E. 29, 11 Am. & Eng-. Ann. Cas. 665. 

Garnishment proceedings in foreign state. Rykard v. S. A. L. Ry., 80 S. C. 52, 61 S. E. 
252; Erwin v. Southern Railway, 71 S. C. 225; 50 S. E. 778; Harris v. Balk, 198 U. S. 215, 
49 L. Ed. 1023. 

Proceedings as to publication of summons before attachment are void. Little v. Christie, 
69 S. C. 57, 48 S. E. 89. 

Attachment will not lie against an absent administrator or executor. Weyman v. Murdock, 
Harp, 126. 

The ad.iudication of a member of a firm as a bankrupt does not effect right of partnership 
creditor to attach partnership assets. Pelzer Mfg. Co. v. Pitts & Hartzog, 76 S. C. 349, 57 
S. E. 29, 11 Am. & Eng. Ann. Cas. 665. 

Motion to vacate must specify irregularity. Coker v. Barfield, 73 S. C. 179, 53 S. E. 174. 

On motion to dissolve attachment on ground that cause of action in affidavit is not cause of 
action alleged in complaint, complaint mav be considered with aflidavit, although not verified, nor 
made part of affidavit. Fleming- v. Byrd, 78 S. C. 20, 58 S. E. 965. 

Car being used in interstate commerce is not subject of attachment. Seibles v. Railway Co., 
80 S. C. 133, 61 S. E. 435. 16 L. R. A., N. S., 1026n. Modifield in Davis v. C. C. & St. 
L. R. Co., 217 U. S. 157, 54 L. Ed. 708. 

Warrant of attachment may be issued in action in equity for accounting against property 
of nonresident. Agency Co. v. Garlington, 85 S. C. 114, 67 S. E. 225. 

The procedure by attachment to secure jurisdiction of the defendant under the provisions 
of this Section is permissible in six cases all referring to absence or concealment of defendant 
or the concealment or the disposal of his property, and applies only when the summons is 
issued and the service thereof personally or by puljlication thereof is effected within 30 days 
after the attachment, the express object of which is, "as the security for the satisfaction of 
such judgment as the plaintiff may recover." Stephens v. Ringling, 102 S. C. 333, 86 S. E. 683. 

(501) § 2. Attachment — By Whom Granted. — A warrant of attach- 
ment must be obtained from a Judge, or Clerk of the Court, or Magistrate, 
in which or before whom the action is brought, or from a Circuit Judge. 

Civ. Pro., '12, § 280 ; Civ. Pro., '02, § 249 ; 1870, XIV, § 251. 



OF SOUTH CAROLINA 187 

(502) § 3. In What Cases Attachments May Be Issued — Affidavit to 
Be Filed. — The warrant may be issued whenever it shall appear by affi- 
davit that a cause of action exists against such defendant, specifying the 
amount of the claim and the grounds thereof, and that the defendant is 
either a foreign corporation or not a resident of this State, or that the de- 
fendant is the master, captain, or agent of any sailing vessel entering any 
of the ports of this State, and is about to take such vessel out of any port 
of this State, without paying the pilotage fees provided by law, or that the 
defendant has departed from the State with intent to defraud his or its 
creditors, or to avoid service of a summons, or keeps himself concealed 
therein with the like intent, or that such corporation or person has removed, 
or is about to remove, any of his or its property from this State, with intent 
to defraud his or its creditors, or has assigned, disposed of or secreted, or 
is about to assign, dispose of or secrete, any of his or its property with the 
like intent, whether such defendant be a resident of this State or not. It 
shall be the duty of the plaintiff procuring such warrant, at the time of the 
issuing thereof, to cause the affidavits on which the same was granted to be 
filed in the office of the Clerk of the Court of Common Pleas, or with the 
Magistrate, in which or before whom the action is to be tried, within forty- 
eight hours after the issuance of the attachment. He shall also cause copies 
thereof to be served on the defendant with the summons, if he can be found 
within the county: Provided, however, That in cases where the defendant 
is the master, captain or agent of any vessel entering any of the ports of 
this State, it shall only be necessary that the affidavit show that a cause of 
action exists against such defendant for pilotage services, specifying the 
amount of the claim and the grounds thereof, and that the defendant is 
about to take such vessel out of any port of this State, and refuse to pay or 
has not paid the fees provided by law for such pilotage services. 

Civ. Pro., '12, § 281; Civ. Pro., '02, § 250; 1870, XIV, 252; 1897, XXII, 451; 1899, 
XXIII, 31. 

The affidavit need not be made by plaintiff, but may be made by asent or attorney on 
information and belief; and the same affidavit may be used in several cases. Grollman v. 
Lipsitz, 43 S. C. 329, 21 S. E. 272; Guckenheimer v. Libbey, 42 S. C. 162, 19 S. E. 999. 
A verified complaint may be used as an affidavit. Ferst v. Powers, 58 S. C. 398, 36 S. E. 744. 
But an unverified complaint cannot help affidavit. Addison v. Sujette, 50 S. C. 192, 28 S. E. 948. 

Attachment of nonresident against a foreign corporation is valid to the extent that the cause 
of action arose in this State. Central Railroad Co. v. Georgia Co., 32 S. C. 319, 11 S. E. 192. 
But attachment will not lie in action of resident administrator against nonresident guardian of 
infants residing" in another State because such action cannot be maintained. Stevenson v. 
Dunlap, 33 S. C. 350, 11 S. E. 1017. 

The affidavit is sufficient as to cause of action, if it state a cause of action, or if it state 
facts from which, as a legal conclusion, it must be inferred that it does exist. Monday v. 
Elmore, 27 S. C. 126, 3 S. E. 65; Central Railroad Co. v. Georgia Co., 32 a. C. 319, 11 S. 
E. 192; Roddev v. Erwin, 31 S. C. 36, 9 S. E. 729; Bank v. Stelling, 31 S. C. 360; Ketchin v. 
Landecker, 32 S. C. 155, 10 S. E. 936. 

Where ground of attachment is such nonresidence of the defendant, the affidavit is sufficient 
if it state fact without other facts and circumstances. Smith v. Walker, 6 S. C. 156; Roddey v. 
Erwin, 31 S. C. 36, 9 S. E. 729. 

But as to all the other grounds, the affidavit must positively state the facts; and if upon 
information, it must also state the sources of information and circumstances relied on to show 
them. Smith v. Walker, 6 S. C. 169; Brown v. Norris, 10 S. C. 467: Claussen v. Fultz, 13 
S. 0. 478; Burch v. Brantlev, 20 S. C. 506; Ivy v. Caston, 21 S. C. 588: Myers v. Whiteheart, 
24 S. C. 196; Mixson v. Hollev, 26 S. C. 256, 2 S. E. 385; Mondav v. Elmore, 27 S. C. 126, 3 
S. E. 65; Wando v. Rosenberg, 31 S C. 301, 9 S. E. 969; Roddey v. Erwin, 31 S. C. 36, 9 
S. E. 729; Sharp v. Palmer, 31 S. C. 444, 10 S. E. 98. 

Whether covies of the affidavits filed will suffice. Wagener v. Booker, 33 S. C. 375, 9 S. E. 
1055. 

Where the affidavits were not, prior to the amendment of 1899, XXITI, 30, filed in ten davs 
the attachment will be discharged on motion. Ketchin r. Landecker, 32 S. C. 155, 10 S. E. 
936. Service of copies on the defendant within that time will not suffice. lb. And this 
requirement as to the time within which the affidavits must be filed still governs in proceedings 
to enforce agricultural liens. Doty v. Bovd, 46 S. C. 39, 24 S. E. 59: Townsend v. Sparks, 
50 S. C. 380, 27 S. E. 801, Blair v. Morgan 59 S. C. 52, 37 S. E. 45. But the time 
within which the affidavits in attachment must now be filed has been reduced by that amend- 
ment to two days. Ferst v. Powers, 58 S. C. 398, 36 S. E. 744. 



188 CODE OF CIVIL PROCEDURE 

While the affidavit must be signed by the affiant, the jurat thereto need not be signed by 
the officer administering the oath. Doty v. Boyd, ^wpra. The affidavit is filed vyhen delivered 
to the Clerk, and by him received to be kept on record. Townsend v. Sparks, supra. The affidavit 
need not state that the property disposed of was not a part of the homestead. GroUman v. 
Lipsitz, supra. 

General appearance by defendant covers alleged defects in issuing attachment. Savannah 
Grocery Co. v. Rizer, 70 S. C. 508, 50 S. E. 199. 

In motion to vacate an attachment it is competent for the Court to decide whether the 
affidavits show that a cause of action exists against the defendant. Seibles v. Railway Co., 80 
S. C. 138, 61 S. E. 435, 16 L. R. A., N. S., 1026n. 

Service on foreign corporation. Norris v. Levin, 81 S. C. 44, 61 S. E. 1103. 

Finding of Circuit Court that defendant is a foreign corporation is final. Geo. Norris Co. v. 
Levin's Sons, 81 S. C. 44, 61 S. E. 1103. 

Acceptance of service in an action involving an attachment does not waive irregularities 
relative to formalities of the attachment, but merely gives jurisdiction of the nerson of the 
defendant and is no waiver of any failure on plaintiff's part to comply with the Statute. Lester v. 
Fox Film Corp., 114 S. C. 414, 103 S. E. 775. 

Under this Section, new affidavits do not have to be filed on successive warrants being 
issued; none but the last being served. Hall v. Lemmond, 105 S. C. 154, 89 S. E. 545. 

(503) § 4. Security on Obtaining Attachment. — Before issuing the 
warrant, the Judge, Clerk, or Magistrate shall require a written under- 
taking, on the part of the plaintiff, with sufficient surety, to the effect that 
if the defendant recovered judgment, or the attachment be set aside by 
order of the Court, the plaintiff will pay all costs that may be awarded to 
the defendant, and all damages which he may sustain by reason of the 
attachment, not exceeding the sum specified in the undertaking, which shall 
be at least two hundred and fifty dollars, except in case of a warrant issued 
by a Magistrate, when it shall be at least twenty-five dollars. 

Civ. Pro., '12, § 282 ; Civ. Pro., '02, § 251 ; 1870, XIV, § 253. 

This written undertaking required must be signed by the plaintiff before the warrant is issued, 
or the attachment based on it will be set aside. Bank v. Stelling, 31 S. C. 360, 9 S. E. 
1028; Wagener v. Booker, 31 S. C. 375, 9 S. E. 1055. 

It must be signed by the plaintiff, or is a nullity. Booker v. Smith, 38 S. C. 228, 16 S. E. 774. 
And by all the plaintiffs. Guckenheimer v. Dryfus, 43 S. C. 443, 21 S. E. 331. But plaintiffs 
may sign by their agent, a telegram being sufficient authority. Ferst v. Powers, 58 S. C. 
398, 36 S. E. 748. And one member of a firm can bind the firm by signing for the firm 
without special authority so to do. Grollman v. Lipsitz, 43 S. C. 329, 21 S. E. 272. The 
signature may be either in the firm name or the individual names of the partners. 16.; Hampton v. 
Bogan, 55 S. C. 547, 33 S. E. 581. The undertaking need not be under seal. lb.; Ferst v. 
Powers, 58 S. C. 398, 36 S. E. 748. 

Undertaking in attachment may be signed by attorney of record on authority of telegram 
from associate attorney that plaintiff authorized it. Purness v. Calhoun, 70 S. C. 537, 50 S. 
E. 194. 

Piling; endorsement of approval on undertaking. Watson v. Paschall, 73 S. C. 422, 53 S. B. 646. 

Bond intended as additional security to liability of plaintiff, at common law. 2 Brev. 495. 

Action for wrongful attachment. Forrest v. McBee, 72 S. 0. 193, 51 S. E. 675. 

If the amount of the bond fixed under this Section be over the minimum prescribed by the 
Section or is insufficient, the remedy is to require the bond increased rather than one to 
dissolve. Copeland Co. v. Brown, 103 S. C. 177, 87 S. C. 1002. 

(504) § 5. Attachment — To Whom Directed and What to Require. — 

The warrant shall be directed to any Sheriff or Constable of any county in 
which property of such defendant may be, and shall require him to attach 
and safely keep all the property of such defendant within his county, or so 
much thereof as may be sufficient to satisfy the plaintiff's demand, together 
with costs and expenses, the amount of which must be stated in conformity 
with the complaint, together with costs and expenses. Several warrants may 
be issued at the same time to the Sheriffs oi: Constables of different counties. 

Civ. Pro., '12, § 283 ; Civ. Pro., '02, § 252 ; 1870, XIV, § 254. 

Debt due defendant by another is subject to attachments. McElvey v. S. C. R. R. Co., 6 
S. C. 446; Campbell v. Ins. Co., 1 S. C. 158. 

The interest of a nonresident partner in partnership property cannot be attached for partner- 
ship debt where one of the partners resides here and is duly served. Whitfield v. Hovey, 30 S. C. 
117, 8 S. E. 840. o, ^ ,„„ 

Property in hands of receiver cannot be attached. Regenstein v. Pearlstein, 30 S. C. 192, 
8 S. E. 850. 

Debts evidenced by bonds and notes can be attached. Williamson v. Eastern B. & L. Assn., 
54 S. C. 582, 32 S. E. 765. As well as books of accounts. Riely v. Middleton. Dud. 21; 
Waddle v. Cureton, 2 Speer 53; Burrill v. Leston, lb. 378. While a claim for damages 
under former attachment act was held not to be the subject of attachment. /&. Alcoholic liquors, 
kept contrary to law, cannot be attached. Lanahan v. Bailey, 53 S. C. 489, 31 S. E. 332. 

Where an "attachment is set aside after sale, the proceeds of the sale may be attached for the same 
debt, while in the Sheriff's hands. Roddy v. Erwin, 31 S. C. 36, 9 S. E. 729. Property 



OF SOUTH CAROLINA 189 

levied upon execiition may also be attached under process against same defendant. Day v. 
Becher, 1 McMul. 92. As to moneys received on execution, in hands of Sheriff, see Blair v. 
Cantey, 2 Speer 34. 

(505) § 6. Property to Be Attached. — The Sheriff or Constable to 
whom such warrant is directed and delivered shall immediately attach all 
the real estate of such debtor, and all his personal estate, including money 
and bank notes, except such real and personal estate as is exempt from 
attachment, levy, or sale, by the Constitution, and shall take into his cus- 
tody all books of account, vouchers and papers relating to the property, 
debts, credits, and effects of such debtor, together with all evidences of his 
title to real estate, which he shall safely keep, to be disposed of as herein- 
after directed. 

When real estate is attached, a true and attested copy of such attachment, 
together with a description of the real estate attached, shall be, by the officer 
serving the same, delivered to the party whose real estate is attached, or left 
at his last and usual place of abode ; and the officer making such service shall 
also leave a true and attested copy of such attachment, together with a 
description of the real estate so attached, in the office where, by law, a 
deed of such estate is required to be recorded ; and, if the party whose estate 
is attached does not reside in this State, then such copy shall be delivered 
to his tenant, agent, or attorney, if any be known ; and, if no such agent, 
tenant, or attorney, be known, then a copy of such warrant of attachment, 
with the officer 's return thereon lodged in the office where, by law a deed of 
such real estate ought to be recorded, shall be deemed sufficient service. It 
shall be the duty of the Clerk or Register of the office wherein said warrant 
of attachment is required to be lodged, to receive the same, and enter in a 
book kept for that purpose the names of the parties, the date of the warrant 
of attachment, the sum demanded, and the officer's return thereon. Said 
attachment shall be a lien subject to all prior liens, and bind the real estate 
attached from the date of lodgment : Provided, That all attachments lodged 
upon the same day shall take rank together. 

Civ. Pro., '12, § 284 ; Civ. Pro., '02, § 253 ; 1870, XIV, § 255. 

The affidavits and warrant need not he served on the defendant in attaching personalty. 
Grollman v. Lipsitz, 43 S. C. 329, 21 S. E. 272. 

Two attachments levied upon personal property of the dehtor at different hours of the same 
day, they rank together as liens. Steffens v* Wanbacker, 17 S. 0. 475. 

All property interests of debtor, equitable or legal may be attached. Mfg. Co. v. Pitts, 76 
S. 0. 356, 57 S. E. 29, 11 Am. & Eng. Ann. Gas. 665. 

Where defendant is a nonresident, the attachment levied to obtain Jurisdiction will be dissolved 
if the property attached is not his. Grocery Co. v. Elevator Co., 72 S. C. 450, 52 S. E. 191, 
110. Am. St. "Rep. 627, 5 Am. & Eng:. Ann. Gas. 261, 2 L. R. A. N., 79n. 

Under this Section, the writ of attachment need not be served except in case of an attachment 
of real estate. Stephens v. Ringling, 102 S. 0. 333, 86 S. E. 683. 

(506) § 7. Sheriff's Duties in Case of Seizure. — He shall, immediately 
on making such seizure, with the assistance of two disinterested freeholders, 
make a just and true inventory of all the property so seized, and of the 
books, vouchers, and papers taken into custody, stating therein the esti- 
mated value of the several articles of personal property, and enumerating 
such of them as are perishable, which inventory, after being signed by the 
Sheriff and appraisers, shall, within ten days after such seizure, be returned 
to the officer who issued the warrant; and the Sheriff or Constable shall, 
under the direction of such officer, collect, receive, and take into his posses- 
sion, all debts, credits, and effects of such debtor, and commence such suits, 
and take such legal proceedings, either in his own name or in the name of 



190 CODE OF CIVIL PROCEDURE 

such debtor, as may be necessary for that purpose, prosecute and discon- 
tinue the same at such times, and on such terms, as the Court may direct. 
The property so seized, or the proceeds of such as shall have been sold and 
debts collected, shall be kept to answer any judgment which may be ob- 
tained in such action. 

Civ. Pro., '12, § 285 ; Civ. Pro. '02, § 254 ; 1870, XIV, § 256. 

An action may be brought by the Sheriff on a note seized under this Section, while a motion 
to vacate the attachment is pending. The same defense may be made as though the action 
were brought by the defendant in attachment. Nichols v. Hill, 42 S. C. 28, 19 S. E. 1017. 

Attachment of choses in action. Mfg. Co. v. Pitts, 76 S. C. 356, 57 S. E. 29, 11 Am. 
& Eng. Ann. Cas. 665. 

(507) § 8. As to Perishable Property Seized. — If any of the property 
so seized be perishable, the Sheriff shall sell the same at public auction, 
under order of the Court or of a Judge thereof, and shall retain in his 
hands the proceeds of such sale, after deducting his expenses, to be allowed 
by such Court or Judge, which proceeds shall be disposed of in the same 
manner as the property so sold would have been if it had remained unsold. 

Civ. Pro., '12, § 286 ; Civ. Pro., '02, § 255 ; 1870, XIV, § 257 ; 1883, XVIII, 491. 

Where a motion to vacate the attachment was made, refused, appeal taken to the Supreme 
Court, and a stay of proceedings asked for, held the Court had a right to order the sale of 
personal property. Southern Railway Co. v. Sheppard, 42 S. C. 543, 20 S. E. 481. 

Attachment of car. Shore v. Railroad Co., 76 S. C. 472, 57 S. E. 526, 11 Am. & Eng. 
Ann. Cas. 909; Seibles v. Railroad Co., 80 S. C. 138, 61 S. E. 435, 16 L. R. A., N. S., 1026n. 

(508) § 9. Claim of Third Persons — Proceedings on. — If the person 
in whose possession such property shall be attached shall appear at the 
return of the writ and file his answer thereto, and deny the possession 
or control of any property belonging to the defendant, or claim the money, 
lands, goods and chattels, debts and books of account as creditor in pos- 
session, or in his own right, or in the right of some third person, or if any 
of the said property be claimed by any other person than such defendant, 
then, if the plaintiff be satisfied therewith, the party in possession shall be 
dismissed and the plaintiff may pay the cost of his action. But if the plain- 
tiff shall contest the said return or the claim of said third person, an issue 
shall be made up under the direction of the Judge to try the question, and 
the party that shall prevail in said issue shall recover the costs of such pro- 
ceeding of the opposite party, and judgment shall be given accordingly. 
If the party in possession, or the third person claiming the property, as 
the case may be, resides in a different county from that in which the action 
is brought, and an issue be made up between him and the plaintiff, the action 
shall be tried in the county where the party in possession resides. In case 
the property is claimed by a third person, the plaintiff shall execute to such 
person the same undertaking that he is now required to give under Sec- 
tion 503 ; the said undertaking to be executed within ten (10) days after 
notice of such claim. 

Civ. Pro., '12, § 287; Civ. Pro., '02, § 255a; 1883, XVIII, 491. 

Under this Section, assignee of defendant's property, under deed of assig'nment, must establish 
his right to the property before he can move to discharge the attachment under Section 517. 
Bryce v. Foot, 25 S. C. 467. 

This Section does not provide that a third person may move to vacate the attachment, but 
simply provides a remedy by which he may retain or regain possession of the pronerty attached, 
unless the attaching creditor gives the undertaking required by the act within the time prescribed. 
Ford V. Calhoun, 53 S. C. 110, 30 S. E. 830. The provisions of this Section do not apply 
to proceedings to enforce agricultural liens. Southern Railway Co. v. Sarratt, 58 S. C. 
98, 36 S. E. 504. 

A railroad car sent loaded from one State into another, and to be returned to the former 
State in the transaction of interstate commerce, cannot be attached in the latter State. Shore & 
Bro. V. B. & O. R. Co., 76 S. C. 472, 57 S. E. 526, 11 Am. & Eng. Ann. Cas. 909. 



OF SOUTH CAROLINA 191 

(509) § 10. As to Attachment When Debt Is Not Due. — Whenever a 
debt is not yet due, and it appears to the satisfaction of a Circuit Judge, 
the Clerk of the Court of Common Pleas, or Magistrate, by affidavit, that 
the debtor has departed from the State with intent to defraud his credi- 
tors, or to avoid the service of a summons, or keep himself concealed 
therein with a like intent, or that such person has removed or is about to 
remove any of his property from this State with intent to defraud his 
creditors, or has assigned, disposed of or secreted, or is about to assign, 
dispose of or secrete, any of his property with like intent, it shall be law- 
ful for the plaintiff forthwith to institute suit upon such debt or cause of 
action, and for the said Circuit Judge, Clerk, or Magistrate to issue his 
warrant of attachment as if said debt were then due and payable: Pro- 
vided, That no judgment shall be had thereon till after the maturity of 
the debt: And Provided, further. That the plaintiff pay the costs in case 
the debtor pays the debt on or before its maturity. 

Civ. Pro., '12, § 288 ; Civ. Pro., '02, § 255b ; 1883, XVIII, 491. 

Action on debt not yet due; affidavit held insufficient. Correll v. Georgia Co., 37 S. C. 444, 
16 S. E. 157. Affidavit sufficient. Ex parte Chase, 62 S. C. 353, 38 S. E. 718. 

(510) § 11. As to Shares in Incorporations, Vessels, Etc. — The rights 
or shares which such defendant may have in any vessel, or in the stock 
of any association or corporation, together with the interest and profits 
thereon, and all other property in this State of such defendant, except that 
exempt from attachment by the Constitution, shall be liable to be attached 
and levied upon and sold to satisfy the judgment and execution. 

Civ. Pro., '12, § 289 ; Civ. Pro., '02, § 256 ; 1870, XIV, § 258 ; 1883, XVIII, 491. 
Right of Sheriff to sell stock in corporation. Richardson v. Wallace, 39 S. C. 216, 17 S. E. 725. 

(511) § 12. Attachment — How Executed on Property Incapable of 
Manual Delivery. — The execution of the attachment upon any such rights, 
shares, or any debts or other property incapable of manual delivery to 
the' Sheriff or Constable, shall be made by leaving a certified copy of the 
warrant of attachment with the president or other head of the association 
or corporation, or the secretary, cashier, or managing agent thereof, or 
with the debtor or individual holding such property, with a notice show- 
ing the property levied on. 

Civ. Pro., '12, § 290 ; Civ. Pro., '02, § 257 ; 1870, XIV, § 259. 

Not necessary to serve copy on defendant in seizing personal property capable of manual 
delivery. Grollman v. Lipsitz, 43 S. C. 329, 21 S. E. 272. 

Service on agent of railroad in this State having in possession car of foreign railroad of 
notice and warrant of attachment, taking memoranda of number and name of car and notifying 
yardmaster of levy, is sufficient seizure under attachment. Seibels v. Railway Co., 80 S. C. 
133, 61 S. E. 435, 16 L. R. A., N. S., 1026n. 

(512) § 13. Certificate of Defendant's Interest to Be Furnished. — 

Whenever the Sheriff or Constable shall, with a warrant of attachment or 
execution against the defendant, apply to such officer, debtor, or indi- 
vidual, for the purpose of attaching or levying upon such property, such 
officer, debtor, or individual shall furnish him with a certificate, under his 
hand, designating the number of rights or shares of the defendant in the 
stock of such association or corporation, with any dividend or encum- 
brance thereon, or the amount and description of the property held by 
such association, corporation, or individual, for the benefit of or debt owing 
to the defendant. If such officer, debtor, or individual refuses to do so. 



192 CODE OF CIVIL PROCEDURE 

he may be required by the Court or Judge to attend before him, and be 
examined on oath concerning the same, and obedience to such order may 
be enforced by attachment. 
Civ. Pro., '12, § 291 ; Civ. Pro., '02, § 258 ; 1870, XIV, § 260. 

Mfg. Co. V. Pitts, 76 S. C. 358, 57 S. E. 29, 11 Am. & Ann. Cas. 665. 

(513) § 14. Judgment — How Satisfied. — In case judgment be entered 
for the plaintiff in such action, the Sheriff or Constable shall satisfy the 
same out of the property attached by him, if it shall be sufficient for that 
purpose . 

1. By paying over to such plaintiff the proceeds of all sales of perishable 
property, and of any vessel, or share or interest in any vessel, sold by him, 
or of any debts or credits collected by him, or so much as shall be nec- 
essary to satisfy such judgment. 

2. If any balance remain due, and an execution shall have been issued on 
such judgment, he shall proceed to sell, under such execution, so much of 
the attached property, real or personal except as provided in subdivision 
4 of this Section, as may be necessary to satisfy the balance, if enough for 
that purpose shall remain in his hands ; and in case of the sale of any 
rights or shares in the stock of a corporation or association, the Sheriff or 
Constable shall execute to the purchaser a certificate of sale thereof, and 
the purchaser shall thereupon have all the rights and privileges in respect 
thereto which were had by such defendant. 

Question as to efScacy of Sheriff's sale of corporate stock. Richardson v. Wallace, 39 S. C. 
216, 17 S. E. 725. 

3. If any of the attached property belonging to the defendant shall 
have passed out of the hands of the Sheriff or Constable without having 
been sold or converted into money, such Sheriff or Constable shall repos- 
sess himself of the same, and for that purpose shall have all the authority 
which he had to seize the same under the attachment ; and any person who 
shall wilfully conceal or withhold such property from the Sheriff or Con- 
stable, shall be liable to double damages, at the suit of the party injured. 

4. Until the judgment against the defendant shall be paid, the Sheriff or 
Constable may proceed to collect the notes and other evidences of debt, and 
the debts that may have been seized or attached under the warrant of 
attachment, and to prosecute any bond he may have taken in the course 
of such proceedings, and apply the proceeds thereof to the payment of 
the judgment. 

If the attachment is a foreign attachment, it is only a proceeding in rem., unless the defendant 

appear; and if he fail to appear, the Court cannot render a judgment that would have any 

effect beyond the property attached and so subjected to a lien. Stanley v. Stanley, 35 S. C. 
94, 14 S. E. 675. 

At the expiration of six months from the docketing of the judgment, the 
Court shall have power, upon the petition of the plaintiff accompanied 
by an affidavit, setting forth fully all the proceedings which have been 
had by the Sheriff or Constable since the service of the attachment, the 
property attached, and the disposition thereof, and also the affidavit of 
the Sheriff or Constable that he has used diligence and endeavored to 
collect the evidences of debt in his hands so attached, and that there re- 
mains uncollected of the same any part or portion thereof, to order the 
Sheriff or Constable to sell the same, upon such terms and in such man- 



OF SOUTH CAROLINA 193 

ner as shall be deemed proper. Notice of such application shall be given 
to the defendant, or his attorney, if the defendant shall have appeared 
in the action. In the case the summons has not been personally served on 
the defendant, the Court shall make such rule or order, as to the service of 
notice and the time of service, as shall be deemed just. When the judgment 
and all costs of the proceedings shall have been paid, the Sheriff or Con- 
stable, upon reasonable demand, shall deliver over to the defendant the 
residue of the attached property, or the proceeds thereof. 
Civ. Pro., '12, § 292 ; Civ. Pro., '02, § 259 ; 1870, XIV, § 261. 

(514) § 15. Prosecution of Action to Recover Notes, Etc., in Action in 
Which Attachment Issued. — The actions herein authorized to be brought 
by the Sheriff or Constable may be prosecuted by the plaintiff, or under 
his direction, upon the delivery by him to the Sheriff or Constable of an 
undertaking executed by two sufficient sureties, to the effect that the 
plaintiff will indemnify the Sheriff or Constable from all damages, costs, 
and expenses on account thereof not exceeding two hundred and fifty dol- 
lars in any one action. Such sureties shall, in all cases, when required 
by the Sheriff or Constable, justify by making an affidavit that each is a 
householder, and worth double the amount of the penalty of the bond, ov/er 
and above all demands and liabilities. 

Civ. Pre, '12, § 293 ; Civ. Pro., '02, § 260 ; 1870, XIV, § 262. 

Mfg. Co. V. Pitts, 76 S. C. 358, 57 S. E. 29, 11 Am. & Eng. Ann. Oas. 665. 

(515) § 16. Bond to Sheriff on Attachment — How Disposed of on 
Judgment for Defendant. — If the foreign corporation, or absent or 
absconding or concealed defendant, recover judgment against the plain- 
tiff in such action, any bond taken by the Sheriff or Constable, except 
such as are mentioned in the last Section, all the proceeds of sales and 
moneys collected by him, and all the property attached remaining in his 
hands, shall be delivered by him to the defendant, or his agent, on request, 
and the warrant shall be discharged and the property released therefrom. 

Civ. Pro., '12, § 294 ; Civ. Pro., '02, § 261 ; 1870, XIV, § 203. 

(516) § 17. Discharge of Property and Return of Property or Pro- 
ceeds on Defendant's Appearance. — Whenever the defendant shall have 
appeared in such action, he may apply to the officer who issued the attach- 
ment, or to the Court, for an order to discharge the same ; and, if the same 
be granted, all the proceeds of sales and moneys collected b}^ him, and all 
property attached remaining in his hands, shall be delivered or paid by 
him to the defendant or his agent, and released from the attachment. And 
where there is more than one defendant, and the several property of 
either of the defendants has been seized by virtue of the order of attach- 
ment, the defendant whose several property has been seized may apply 
to the officer who issued the attachment for relief under this Section. 

Civ. Pro., '12, § 295 ; Civ. Pro., '02, § 262 ; 1870, XIV, § 264. 

Where defendants moved on affidavits to vacate the attachment, and plaintiffs offered affidavits 
in reply, the Judge should indicate what affidavits were considered by him. Grollman v. 
Lipsitz, 43 S. C. 329, 21 S. E. 272. The weight to be given the affidavits inust be determined by 
the Circuit Court. lb. 

Pendency of another action for same cause is sufficient to vacate. Ferst v. Powers, 58 S. 
C. 411, 36 S. E. 749. 

Defendant having given bond under next Section does not thereby waive his right to have 
attachment discharged under this. Bates v. KiUian, 17 S. C. 553. 

14 C C P 



194 CODE OF CIVIL PKOCEDURE 

Circuit Judge, on motion upon notice, may discharge an attachment at chambers. Cureton v. 
Dargan, 12 S. C. 122; Clothing Co. v. Shealy, 53 S. C. 14, 30 S. E. 620. And in so doing 
he may decide whether or not the plaintiff has a cause of action. Williamson v. Ass'n., 54 S. C. 
582, 32 S. E. 765. But he cannot decide questions of fact determining the merits of the 
case. Ih. Moore v. Roundtree, 57 S. 0. 77, 35 S. E. 386. 

Refusal to so discharge the attachment in res adjudicata as to moving party, and he cannot 
raise the question again in formal suit. Darby v. Shannon, 19 S. C. 526. 

Such discharge may be had either for invalidity or irregularity of the attachment. Smith v. 
Walker, 6 S. C. 169; Brown v. Morris, 10 S. C. 467; Claussen v. Pultz, 13 S. C. 476; Cureton v. 
"Dargan, 12 S. C. 122; Darby v. Shannon, 19 S. C. 526; Bates v. Killian, 17 S. C. 553; 
Kerchner v. McCormac, 25 S. C. 461. 

Such motion to discharge the attachment on partnership property aerainst nonresident partner 
granted upon the disclosure of the fact by the papers and affidavits that the nonresident had 
no other property here. Whitfield v. Hovey, 30 S. C. 117, 8 S. E. 840. 

Assignee under deed of assignment of defendant cannot move to discharge attachment until 
he has established his right to the property under issue on his return to the attachment. 
Copeland v. Ins. Co., 17 S. C. 116; Metts v. Ins. Co., 17 S. C. 120; Bryce v. Foot, 25 S. C. 
467; Sheldon v. Blanvelt, 29 S. C. 453, 7 S. B. 593. 

When third party intervenes and claims right to the -nroperty, such claimant should be actor 
on trial of issue of ownership. Central R. R. Co. v. Georgia Co., 32 S. C. 319, 11 S. E. 192. 

Another attaching creditor cannot question the regularity of the attachment T)roceedings, and 
his voluntary appearance in the action for that purpose gives the jurisdiction over him. Ex parte 
Perry Stove Co., 43 S. C. 176, 20 S. E. 980; Ford v. Calhoun, 53 S. C. 106, 30 S. E. 830. 
Property attached may be released by the agreement of parties without an order of Court. 
Sullivan v. Williams, 43 S. C. 489, 21 S. E. 642. 

Greenwood Grocery Co. v. Canadian County Mill and Elevator Co., 72 S. C. 457, 52 S. E. 
191, 110 Am. St. Rep. 627, 5 Am. & Eng. Ann. Cas. 261, 2 L. R. A., N. S., 79n. 

A special appearance objection to jurisdiction of Court and to vacate attachment, and the 
giving of bond under this Section to procure a discharge of the attachment pending appeal 
from a judgment thereon, is not a waiver of the defendant's right to challenge the judgment 
for want of jurisdiction, because of a defect in process. Abel v. Hall, 101 S. C. 24, 85 S. E. 165. 

A motion by the defendant, after levy of attachment and before judgment, to have the 
attachment discharged upon giving bond required by this Section, amounts to a general 
appearance unless the defendant limits his appearance solely for the purpose of . substitution 
of security. Stephens v. Ringling, 102 S. C. 333, 86 S. E. 683. 

(517) § 18. Undertaking on Part of Defendant.^ — Upon such applica- 
tion, the defendant shall deliver to the Court or officer an undertak- 
ing executed by at least two sureties, who are residents and freeholders or 
householders in the State, approved by such Court or officer, to the effect 
that such sureties will, on demand, pay to the plaintiff the amount of judg- 
ment that may be recovered against the defendant in the action, not ex- 
ceeding the sum specified in the undertaking which shall be at least double 
the amount claimed by the plaintiff in his complaint. If it shall appear 
by affidavit that the property attached be less than the amount claimed 
by the plaintiff, the Court, or officer issuing the attachment, may order 
the same to be appraised, and the amount of the undertaking shall then be 
double the amount so appraised. And in all cases the defendant, or any 
person who establishes a right to the property attached, may move to dis- 
charge the attachment, as in the case of other provisional remedies. 

And where there is more than one defendant, and the several prop- 
erty of either of the defendants has been seized by virtue of the order 
of attachment, the defendant whose several property has been seized may 
deliver to the Court or officer an undertaking, in accordance with the pro- 
visions of this Section, to the effect that he will, on demand, pay to the 
plaintiff the amount of judgment that may be recovered against such de- 
fendant. And all the provisions of this Section applicable to such under- 
taking shall be applied thereto. 

Civ. Pro., '12, § 296 ; Civ. Pro., '02, § 263 ; 1S70, XIV, § 26.5. 

Bond not Kood as a statutory bond, held valid as a common law bond. Sullivan v. Williams, 
43 S._ C. 489. 21 S. E. 642. 

Motion to vacate attachment and to release bond because affidavit was not sufficient and not 
filed in time comes too late after trial begun without previous notice. Bank v. Sprunt, 86 
S. C. 8, 67 S. E. 955. 

Although this statute does not make the act of executing an undertaking an act of appearance 
it contemplates appearance before the execution of the bond. Stephens v. Ringling, 102 S. C. 333, 
86 S. E. 683. 

See case Able v. Hall, 101 S. 0. 25, 85 S. E. 165 in note Sec. 516, ante. 

To _ preserve _ the property of defendant foreign corporation for execution after judgment, 
plaintiff is entitled to attach its property within the State at any time during pendency of the 



OF SOUTH CAROLINA 195 

action and prior to judgment, though defendant may have submitted its person to the jurisdiction 
by appearance or answer. Lester v. Fox Film Corp., 114 S. C. 414, 1U3 S. K. 775. 

(518) § 19. When Sheriff to Return Attachment, With His Proceed- 
ing's Thereon. — When the warrant shall be fully executed or discharged, 
the Sheriff or Constable shall return the same, with his proceedings thereon, 
to the Court in which the action was brought. 

Civ : Pro., '12, § 297 ; Civ. Pro., '02, § 264 ; ISTO, XIV, § 266. 

(519) § 20. How Purchase Money Past Due May Be Attached— War- 
rant — ^Issuance. — In an action arising for the recovery of the purchase 
money, which is past due, for any real or personal property, it shall be 
lawful for the plaintiff, at the time of the issuing of the summons, or any 
time afterwards, to cause the property of such defendant for which the 
purchase money is payable to be attached in the manner hereinafter pre- 
scribed as a security for the satisfaction of such judgment as the plaintiff 
may recover, and for the purposes of this Section an action shall be 
deemed commenced when the summons is issued. This warrant of attach- 
ment must be obtained from a Judge or Clerk of the Court, or Magis- 
trate in which or before whom the action is brought, or from a Circuit 
Judge. The warrant of attachment may be issued whenever it shall appear 
by affidavit that a cause of action exists against such defendant, speci- 
fying the amount of the claims and the grounds thereof, that the same is 
due, and that the action is brought for the purchase money of real estate 
or personal property which has been sold to the defendant, and which 
he has refused or failed to pay. It shall be the duty of the plaintiff at 
the time of procuring such warrant of attachment to file the affidavit upon 
which the same is granted, in the office of the Clerk of Court of Common 
Pleas, or with the Magistrate in which or before whom the action is to be 
tried. 

Civ.. Pro., '12, § 298; 1904, XXIV, 452. 

Where the buyer of a black mule who had given a purchase money note therefor, exchanged 
it with the seller for a roan mule, paying the difference in cash and agreeing to execute a 
note for the balance, which he failed to do, the debt due seller was for the purchase money of 
the roan mule, and in an action for the amount so due, such mule could be attached and 
sold to satisfy the judgment, under this Section. Livestock Co. v. Wilson, 97 S. 0. 475, 81 S. E. 180. 

(520) § 21. Undertaking — Direction. — Before issuing the warrant of 
attachment, the Judge, Clerk or Magistrate shall require a written under- 
taking on the part of the plaintiff, with sufficient sure'^ty to the effect that 
if the plaintiff shall fail to prove that the action is brought to recover the 
purchase money for the property which is about to be attached, or if the 
defendant recovers judgment, or the attachment be set aside by the order 
of the Court, the plaintiff will pay all cost that may be awarded to the 
defendant, and all damages which he may sustain by reason of the attach- 
ment, not exceeding the sum specified in the undertaking, which shall be at 
least two hundred and fifty dollars ($250.00), except in case of a warrant 
issued by a Magistrate, when it shall be at least twenty-five ($25.00). The 
warrants shall be directed to any Sheriff or Constable of any County in 
which the said property of such defendant may be, and shall plainly de- 
scribe the same, and shall require such officer to attach and safely keep 
such property of the defendant, or so much thereof as may be sufficient to 
satisfy plaintiff's demand, together with costs and expenses. 

Civ. Pro., '12, § 299 ; 1904, XXIV, 452. 



196 CODE OF CIVIL PROCEDURE 

(521) § 22. How Attachment Made.— The Sheriff or Constable to 
whom such warrant is directed and delivered, shall immediately attach 
the real estate or personal property of the defendant which is described 
in the warrant, and hold the same until further order of the Court. When 
real estate is attached, a true and attested copy of such warrant shall be, 
by the officer serving the same, delivered to the defendant, or left at his 
last or usual place of residence, and the officer making such service shall 
also leave a true and attested copy of such warrant or attachment in the 
office where, by law, a deed of such estate is required to be recorded, and 
if the party whose estate is attached does not reside in this State, then such 
copy shall be delivered to his tenant, agent or attorney, if any be known, 
and if no such agent, tenant or attorney be known, then a copy of such 
warrant of attachment, with the officer's return thereon, lodged in the 
office where, by law, a deed of such real estate ought to be recorded, shall 
be deemed sufficient service. It shall be the duty of the Clerk or Register 
of the office wherein said warrant of attachment is required to be lodged, 
to receive t^e same and enter in a book kept for that purpose the names 
of the parties, the date of the warrant of attachment, the sum demanded, 
and the officer's return thereon. Said attachment shall be a lien subject 
to all prior liens, and bind the real estate attached from the date of lodg- 
ment, and shall be a lien upon the personal property attached from the date 
of the levy thereon. 

Civ. Pro., '12 § 300 ; 1904, XXIV, 452. 

(522) § 23. Appraisement. — Such further proceedings on the part of 
the Sheriff or Constable in reference to the appraisement of the personal 
property attached, or the sale of such personal property as may be per- 
ishable, shall be the same as now required by Sections 506 and 507, and 
such further proceedings in reference to the disposition of the bond given 
by the plaintiff in case of judgment for defendant, and the discharge of 
the attachment and return of property or its proceeds to defendant. 
And the undertaking on the defendant's part shall be the same as now re- 
quired by Sections 515, 516 and 517. 

Civ. Pro., '12, § 301 ; 1904, XXIV, 452. 

(523) § 24. Trial by Jury. — In all actions tried by a jury, where the 
plaintiff claims that the action is brought for the recovery of the purchase 
money for the property attached, if the jury find for the plaintiff they shall 
also state in their verdict whether or not the amount found is for the pur- 
chase money of the property attached ; and in all cases tried by the Judge, 
if he decides in favor of the plaintiff he shall certify whether or not the 
debt so found by him is for the purchase money of the property seized 
under the warrant of attachment; and in such cases he shall direct that 
the attached property shall be sold by the Sheriff or Constable, and the 
proceeds arising from such sale be applied in payment of the plaintiff's 
debt and cost, and if there should be a surplus left the same to be paid 
over to the defendant. 

Civ. Pro., '12, § 302 ; 1904, XXIV, 452. 



OF SOUTH CAROLINA 197 

CHAPTER V. 

Provisional Remedies. 

(524) § 1. Powers of Courts as to Receivers. — A receiver may 
be appointed by a Judge of the Circuit Court, either in or out of Court : 
1870, XIV, § 267. 

In supplementary proceedings in search of assets to paj' judgment, Section 618, post, is 

authority for the Judge to appoint a Receiver, and he is governed by the law as stated in 

Sections 613 and 622 and not by this Section. Deer Island Lbr. Co. r. Chemical Co., Ill 
S. C. 299, 97 S. E. 833. 

1. Before judgment, on the application of either party, when he estab- 
lishes an apparent right to property which is the subject of the action, and 
which is in the possession of an adverse party, and the property, or its rents 
and profits, are in danger of being lost, or materially injured or impaired ; 
except in cases where judgment upon failure to answer may be had with- 
out application to the Court. 

Receiver should not be appointed on motion of Judge without notice to parties. White v. 
Britton, 72 S. C. 178, 51 S. E. 547. 

Receiver on dissolution of corporation. Brookshire v. Farmers Alliance, 73 S. C. 131, 52 S. 
E. 867. 

Sale by receiver. Ex parte O'Bannon, 65 S. C. 489, 43 S. E. 958. 

Greenwood, etc., Ass'n. v. Childs, 67 S. C. 251, 45 S. E. 167. 

Whilden v. Chapman, 80 S. C. 84, 61 S. E. 249. 

2. After judgment, to carry the judgment into effect. 

3. After judgment, to dispose of the property according to the judg- 
ment, or to preserve it during the pendency of an appeal, or when an ex- 
ecution has been returned unsatisfied, and the judgment debtor refuses to 
apply his property in satisfaction of the judgment. 

4. When a corporation has been dissolved, or is insolvent, or in immi- 
nent danger of insolvency, or has forfeited its corporate rights ; and, in 
like cases, of the property within this State of foreign corporations. Re- 
ceivers of the property within this State of foreign or other corporations 
shall be allowed such commissions as may be fixed by the Court appointing 
them, not exceeding five per cent, on the amount received and disbursed 
by them. 

Commissions under control of Court. Ex parte Reynolds, 68 S. C. 436, 440, 47 S. E. 728. 

Where corporation ceases to be a going concern and there is ground for inference that it is 
in eminent danger of insolvency, its assets scant and probable expense of litigation and existence 
of some creditors and possibility of others, receiver may be appointed. Chisolm v. Agency Co., 
88 S. C. 438. 

5. In such other cases as are now provided by law, or may be in accord- 
ance with the existing practice, except as otherwise provided in this Code 
of Procedure. 

Showing that farmer has disposed of large resources, professing to have nothing left, leaving 
his_ debts unpaid, refusing to give any account of his property or io take any interest in 
satisfaction of their claims, warrants appointment of receiver without nulla bona returns on 
execution. Chemical Co. v. Hunter, 84 S. C. 214, 66 S. E. 177. 

6. Receiver Not to Be Appointed Without Notice. — No receiver of the 
property of any person or corporation shall be hereafter appointed by any 
Court or Judge, either in term time or at chambers, without notice of the 
application for such appointment to the party or parties to the action whose 
property is sought to be put in the hands of a receiver, and to the party or 
parties to the action in possession of such property claiming an interest 
therein under any contract, lease or conveyance thereof from the alleged 
owner. At least four days notice of the application must be given, unless 



198 CODE OF CIVIL PROCEDURE 

the Court shall, upon it being made to appear that delay would work in- 
justice, prescribe a shorter time. 
1897, XXII, 510. 

Notice to Non-Resident — On Whom Served. — Where the party whose 
property is sought to be placed in the hands of a receiver cannot be found 
within the State, then notice of the application to the party in possession of 
sucli property shall be sufficient ; and where the property is abandoned 
and not in possession of any one, and the party claiming the same cannot 
be found within the State, then the appointment may be made without 
the notice of the application: Provided, That wherever a receiver is ap- 
pointed and the party claiming the property cannot be found within the 
State, notice of such appointment shall be forthwith given by publica- 
tion or personal service without the State, as prescribed by law in the 
case of a summons in a civil action. 

1897, XXII, 510. 

7. Temporary Injunction May Be Granted Without Notice. — The 
Court or Judge may by temporary injunction, without notice, pending the 
hearing of such application, restrain the delivery of the property, or any 
part thereof, sought to be put in the hands of a receiver to any other per- 
son whomsoever, and the Court shall be deemed to have taken jurisdiction 
over such property from the time of the issuance of such temporary injunc- 
tion : Provided, That no such temporary injunction shall issue so as to 
interfere with the use and disposition of such property by any person or 
corporation in the usual and customary mode and course of business and 
use of the same without the Court or Judge first requiring from the party 
applying for such injunction a bond, with security, in a sufficient sum, 
not less than two hundred and fifty dollars, to pay all damages arising 
from said temporary injunction should no receiver be appointed on the 
hearing of the application. 

1897, XXII, 510. 

The undertaking required cannot be dispensed with. Roberts v. Pinkin, 63 S. C. 252, 41 S. E. 
300. 

8. No Receiver to Be Appointed Before Judgment Without Bond. — 
No receiver of the property of any person or corporation shall be here- 
after appointed before final judgment in the cause if the party claiming 
the property so sought to be placed in the hands of a receiver or the party 
in possession thereof shall offer a bond, in the penalty of double the value 
of the property, with sufficient security, approved by the Clerk of the 
Court of Common Pleas of the Courts in which the action is brought, to 
fully account for and deliver over, whenever thereafter required by any 
final adjudication in the cause, the property sought to be placed in the 
hands of a receiver, and to meet and satisfy any decree or judgment or 
order that may be made in the cause. 

1897, XXII, 510. 

9. Court to Fix Value of ^^roperty to Be Affected. — Whenever the 
Court or Judge before whom such application is made shall appoint a 
receiver before final judgment in the cause, there shall be inserted in the 
order of appointment a clause fixing the value of the property for which 



OF SOUTH CAROLINA 199 

the bond may be given, as prescribed in Subdivision 8 of this Section ; and 
upon the due execution and filing of such bond thereafter before final judg- 
ment in the cause, the Court or Judge shall vacate the appointment of such 
receiver and direct the redelivery of the property to the party from whose 
possession it was taken: Provided, That where, under the orders of the 
Court or Judge, the receiver has incurred any lawful charges and expenses 
in the care and custody of the property put into his hands, the Court or 
Judge, before directing the redelivery, may require suificient security to 
be given in addition for the payment of such lawful charges and expenses 
should they be thereafter finally adjudged to be chargeable against the 
property. 
1897, XXII, 510. 

10. How Damages Ascertained if Receiver Is Improperly Appointed. 
— Whenever a receiver shall have been appointed of any property against 
the opposition of any party to the cause, and shall have taken possession 
of the same, and thereafter by any final adjudication such receiver shall be 
held to have been improperly appointed, the costs, charges and expenses 
of such receivership shall not be charges upon the property as a whole, 
but only upon the interests therein of the party or parties procuring the 
appointment; and any party to the cause having opposed such receiv- 
ership may apply to the Court after final adjudication, as aforesaid, and 
have it referred to a Master, Referee or jury, as the practice in the case 
presented may be proper, to have his actual damages by reason of such re- 
ceivership ascertained and assessed and for judgment therefor against the 
party or parties having procured such receiver. 

1897, XXII, 510. 

11. Bonds to Be Made Payable to Clerk of Court, Etc. — The several 
bonds required by this Chapter shall be made payable to the Clerks of the 
respective Courts in which the action is pending in which the bonds shall 
be made, and shall be conditioned as required by this Chapter, and shall, 
upon execution and approval as to form and sufficiency by the Court or 
Judge, or such other officer as the order shall prescribe, be filed in the 
office of the Clerk of Court, who shall, upon demand of any party to the 
cause and payment of the legal fees therefor, give certified copies of such 
bonds, on which any party entitled to the benefit thereof may sue the 
parties liable thereon in any Court of competent jurisdiction; and the pro- 
duction of such certified copy shall be prima facie evidence of the bond. 
Should the security become insufficient upon any of such bonds after the 
same have been given and approved, the Court or Judge may,' upon appli- 
cation, after notice, require the security to be made sufficient, and on de- 
fault therein may proceed as if no bond had been given, but without preju- 
dice to the right of any party entitled to the benefit of such bond, to en- 
force it according to the terms and conditions thereof. 

1897, XXII, 510. 

In application for receiver under Subdivision 1 he mav be appointed under Subdivision 2. 
Green v. Bookhart, 19 S. C. 417. 

Receiver may be appointed in supplementary proceedings witbout notice. Billing v. Foster, 
21 S. C. 338. 

Although another Judge upon application of other creditors had previously refused to do so. 
Dauntless Co. v. Davis, 22 S. C. 584. And notwithstanding creditor's action in another Court 
and a previous assignment by debtor. lb. 

But there can be only one receiver so appointed. Sparks v. Davis, 25 S. C. 381. 



200 CODE OF CIVIL PROCEDURE 

Receiver may be appointed at chambers. Kilgore v. Hair, 19 S. C. 486; Regenstein v. Pearl- 
stein, 30 S. C. 192, 8 S. E. 850; Harman v. Wagner, 33 S. 0. 487, 12 S. E. 98. 

But the power is a delicate one and must be exercised with great care. Pelzer v. Hughes, 
27 S. C. 408, 3 S. E. 781. 

The master of the Court cannot be appointed receiver. Kilgore v. Hair, 19 S. C. 486. Nor 
Clerk of Court. White v. Britton, 72 S. C. 178, 51 S. E. 547. 

Admissions in answer are sufficient evidence on motion for announcement of receiver. 
Meinhard v. Strickland, 29 S. C. 491, 7 S. E. 838. 

Where President and Directors of an insolvent railroad are directed by the Court to continue 
in possession of the property under order of and subject to the Court, thev are thus made 
receivers. In re Mortgage Bonds, 15 S. C. 314; Ex parte Brown, 15 S. C. 531. 

Where complaint claims title to land and seeks to recover it and alleges insolvency of 
defendant and danger of loss or rents, and all these are denied in answer, there is no case 
for appointment of receiver. DeWalt v. Kinard, 19 S. C. 293. 

Even under Assignment act creditors cannot have receiver appointed to take charge of the 
assigned estate, where they have not exhausted their legal remedies, nor show danger of loss of 
property or injury thereto. Pelzer v. Hughes, 27 S. C. 408, 3 S. E. 781. 

But upon showing of insolvency, negligence and incompetency on the part of the assignee, 
satisfactory to the Judge, he was justified in appointing a receiver. Regenstein v. Pearlstein, 
30 S. C. 192, 8 S. E. 850. 

Receiver need not give bond to collect rents in pending action. DeWalt v. Kinard, 19 S. C. 
293. Nor is bond essential for receiver appointed in supplementary proceedings. Dilling v. 
Foster, 21 S. C. 338. 

Receiver should not be appointed where corporation is solvent. Miller v. So. Land and 
Lumber Co., 53 S. C. 364, 31 S. E. 281. 

Notice of application for appointment of a receiver left with defendant's wife, at his residence, 
is good service. Allen v. Cooley, 53 S. C. 414, 31 S. E. 634. 

The appearance of defendant held to be waiver of service of notice; practice under the Act 
of 1897, XXIL 510, subdivisions 6 to 11 above. lb. 

Receiver's accounts. Sarratt v. GafCney Mfg. Co., 77 S. C. 85, 57 S. E. 616. 

Receiver to collect rents in action for partition. Christ Church v. Pishburne, 83 S. C. 304, 
64 S. E. 238. 

Judge should not appoint receiver on his own motion without notice to either party, nor 
appoint Clerk of Court. White v. Britton, 72 S. C. 178, 51 S. E. 547. 

When property is in hands of receiver under this Section, an order authorizing such receiver 
to sell does not contravene Section 607 of this Code. Ex parte O'Bannon, 65 S. C. 489, 43 
S. E. 958. 

Party entitled to notice of application for order requiring deposit of money. American Machine 
Co. V. Commander, 77 S. C. 312, 57 S. E. 1108. 

So in action by executor or marshal assets, where he is shown to be guilty of misconduct, 
and that he and estate were solvent, creditors would, without exhausting their legal remedies, 
have receiver appointed. Harman v. Wagner, 33 S. C. 487, 12 S. E. 98. 

Unless mortgagee establishes an apparent right or claim to the assets and profits, he is not 
entitled to have a receiver thereof appointed in his action for foreclosure. Hardin v. Hardin, 
34 S. C. 77, 12 S. E. 936. 

Even though the mortgagor be insolvent and the property insufficient to nay the mortgage. 
Seignious v. Pate, 32 S. C. 134, 10 S. E. 880. 

Receivers may be appointed by the Court to make sales under its orders. Clyburn v. 
Reynolds, 31 S. C. 91, 9 S. E. 973. But a receiver was properly appointed in an action for 
partition where the party in possession was insolvent. McCrady v. Jones, 36 S. C. 136, 15 S. E. 
430. 

Deposit of Money, Etc., in Court. — When it is admitted, by the plead- 
ing or examination of a party, that he has in his possession, or under his 
control, any money or other thing capable of delivery, which, being the 
subject of litigation, is held by him as trustee, for another party, or which 
belongs or is due to another party, the Court may order the same to be 
deposited in Court, or delivered to such party, with or without security, 
subject to the further direction of the Court. 

1870, XIV, § 267. 

Other Provisional Remedies. — Whenever in the exercise of its author- 
ity, a Court shall have ordered the deposit, delivery, or conveyance of 
money or other property, and the order is disobeyed, the Court, besides 
punishing the disobedience as for contempt, may make an order requir- 
ing the Sheriff or Constable to take the money or property, and deposit, de- 
liver, or convey it, in conformity with the direction of the Court. 

1870, XIV, § 267. 

Judgment for Sum Admitted Due. — When the answer of the defend- 
ant expressly, or by not denying, admits part of the plaintiff's claim to be 
just, the Court on motion, may order such defendant to satisfy that part 
of the claim and may enforce the order as it enforces a judgment or pro- 
visional remedy. 

Civ. Pro., '12, § 303 ; Civ. Pro., '02, § 265 ; 1870, XIV, § 267. 



OF SOUTH CAROLINA 201 

Taking an order under this Section as to admitted matter does not preclude further inquiry 
as to issues set up in pleadings so that plaintiff subsequently cannot move to be allowed to 
reply to answer in counterclaim. Mallory v. Douglas, 113 S. C. 384, 101 S. E. 825. 

Where President and Directors of an insolvent railroad are directed by the Court to con- 
tinue in possession of the property under order of and subject to the Court, they are thus 
made receivers. In re Mortgage Bonds, 15 S. C. 314; Ex parte Brown, 15 S. C. 531. 

Where complaint claims title to land and seeks to recover it and alleges insolvency of 
defendant and danger of loss of rents, and all these are denied in answer, there is no case for 
appointment of receiver. DeWalt v. Kinard, 19 S. C. 293. 

If offer to pay be made pending suit, it cannot avail him, unless he follow it up with offer 
to pay money into court, or, at least, submit to judgment for sum admitted. Coghlan v. 
R. Co., 32 Fed 316. 



TITLE VIII. 

OF THE TRIAL AND JUDGMENT IN CIVIL ACTIONS. 

Chapter I. Judgment Upon Failure to Answer, Etc., 201. 

Chapter II. Issues and the Mode of Trial, 203. 

Chapter III. Trial by Jnry, 209. 

Chapter IV. Trial by the Court, 225. 

Chapter V. Trial by Referees, 227. 

Chapter VI. Manner of Entering Judgment, 230. 



CHAPTER I. 
Judgment Upon Failure to Answer, Etc. 

(525) § 1. Judgment Defined. — A judgment is the final deter- 
mination of the rights of the parties in the action. 
Civ. Pro., '12, § 304 ; Civ. Pro., '02, § 266 ; 1870, XIV, § 268. 

A judgment must ascertain and fix these rights to an extent amounting to a substantial 
termination of all the issues. Donaldson v. Bank, 4 S. C. 106; Agnew v. Adams, 24 S. C. 
86. It is erroneous if based on grounds not raised by the pleadings. Magovern v. Richard, 
27 S. C. 272, 3 S. E. 340. 

When granted upon contract, it determines what the contract is and closes it, giving the 
means of enforcing it or redress for its breach. Moore v. Holland, 16 S. C. 15. 

Judgment is not invalid because Circuit Judge made a mistake in the heading of it. Woodard v. 
Woodard, 36 S. C. 118, 15 S. E. 355. 

A decree cannot be regarded as final that leaves in doubt the question whether in the end 
the plaintiff will be entitled to recover. Donaldson v. Bank, 4 S. C. 106. 

To entitle a decree to rank as a final judgment for money it must ascertain a definite sum 
to be paid and order its payments, and authorize execution therefor. Ex parte Farrars, 13 S. 
C. 254. But where the decision disposes of all the issues and directs judgment for balance due 
on a former judgment particularly stated in the record and orders execution for the amount 
to be ascertained by the calculation of Clerk, it is final judgment. Adickes v. Allison, 21 S. C. 245. 

Judgment of domestic court of general jurisdiction presumed to be valid. Ex parte Pearson v. 
Breeden, 79 S .0. 302, 60 S. E. 706. In equity case plaintiff must establish case to satisfaction 
of Court before he can get judgment by default, Cannadv v. Martin, 72 S. C. 131, 51 S. E. 549; 
Marion v. Charleston, 72 S. C. 576, 52 S. E. 418. 

Remedy against judgment by default where complaint is insufficient is bv motion in the cause. 
Gillian v. Gillian, 65 S. C. 129, 43 S. E. 386. 

The order for judgment may be on paper separate from complaint. Melchers v. Moore, 62 
S. C. 386, 40 S. E. 773. 

Giving two orders for judgment not prejudicial error. Carolina Gro. Co. v. Moore, 63 S. 
C. 184, 41 S. E. 88. 

Rendition of judgment on counterclaim. Melchers v. Moore, 62 S. C. 386, 40 S. E. 773. 

A judgment in criminal proceedings cannot be considered res adjudicata in civil proceeding. 
Frierson v. Jenkins, 72 S. C. 341, 51 S. E. 862, 5 Am. & Eng Ann. Cas. 77, 110 Am. St. 
Rep. 608. 

Court may require trustee to answer for ces ui que trust after default. Kaylor v. Hiller, 72 
S. C. 433, 52 S. E. 120. 

The order for judgment is the rendition of judgment. Blohme v. Schmancke, 81 S. C. 81, 
61 S. E. 1060. 

Supreme Court cannot order judgment by default. Marion v. Charleston, 72 S. C. 576, 52 S. 
E. 418. 

Ball V. Trenholm, 45 Fed. 588. 

Record of a judgment in another action to which neither parties were parties or privies, 
creates no presumption as against them, though they may introduce it in evidence in a 
pending action for some collateral purpose. 101 S. C. 40, 85 S. E. 244. 

Under this Section, a decree in mortgage for foreclosure which, after finding the defendant owed 
plaintiff a certain sum, directed its payment on or before a certain date, and sale in default 
of payment, was sufficient as a- judgment; further directing, that the proceeds of sale were 
insufficient, etc., being mere surplusage. 

Barron v. Southern Scale Co., 106 S. C. 342, 91 S. E. 321. 



202 CODE OF CIVIL PROCEDURE 

(526) § 2. Judgment on Failure to Answer, or for Excess Over Coun- 
terclaim — Other Cases. — Judgment may be had, if the defendant fail to 
answer the complaint, as follows : 

1. In any action on contract the plaintiff may file proof of lawful ser- 
vice of summons and complaint on one or more of the defendants, or of 
the summons, according to the provisions of Section 386, and that no ap- 
pearance, answer or demurrer has been served on him. It shall be the 
duty of the Clerk to place all such cases on the default calendar, and said 
calendar shall be called the first day of the term. When the action is 
on a complaint for the recovery of money only, judgment may be 
given for the plaintiff by default if the demand be liquidated; and if 
unliquidated, and the plaintiff itemize his account, and append thereto 
an affidavit that it is true and correct, and no part of the sum sued for 
has been paid, by discount or otherwise, and a copy be served with the 
summons and complaint on the defendant; or if the plaintiff prove his 
claim in open Court, whether itemized or not, and the defendant shall 
neither answer, demur nor serve notice of appearance, the plaintifc 
shall have judgment for the sum sued for as in the ease of liquidated de- 
mands. But in case notice of appearance in an action has been given, by 
or on behalf of a defendant, but no answer or demurrer has been, or 
thereafter shall be, served within the time required by law, the plain- 
tiff, upon filing proof of such facts, shall have his judgment by default 
against such defendant in the same manner, and with like effect, as in 
cases where no notice of appearance has been given. In all other cases 
the relief to be afforded the plaintiff shall be ascertained either by the 
verdict of a jury or in cases in chancery by the judge, with or without a 
reference, as he may deem proper. The order for judgment in such cases 
shall be endorsed upon or attached to the complaint. Where the defend- 
ant, by his answer in any such action, shall not deny the plaintiff's claim, 
but shall set up a counterclaim amounting to less than the plaintiff's 
claim, judgment may be had by the plaintiff for the excess of said claim 
over the said counterclaim in like manner in any such action, upon the 
plaintiff's filing with the Clerk of the Court a statement admitting such 
counterclaim, which statement shall be annexed to and be a part of the 
judgment roll. 

Where time to answer expires after day fixed for opening of Court, but before Court is 
actually opened, and no appearance, answer or demurrer has been served, the case may be 
docketed and judgment by default taken. McComb v. Woodbury, 13 S. C. 479. 

The omission of the words "have judgment" in the Judge's order for judgment, endorsed 
on the complaint, is merely clerical, and does not vitiate the judgment. Henlien v. Graham, 
32 S. C. 303, 10 S. E. 1012. 

When defendant does not deny plaintiff's claim, but sets up a counterclaim, the plaintiff 
upon filing with the Clerk an admission of such counterclaim is entitled, on call of default 
docket, to judgment for excess claimed above the counterclaim. Burgess v. Politzer, 19 S. C. 451. 

In order to obtain a judgment by default, without taking a verdict of the jury, on an 
open account, an itemized copy of the account, duly verified, must be served on the defendant 
with the summons and complaint. Roberts v. Pawley, 50 S. C. 491, 27 S. E. 913. 

Where a defendant neither answers nor demurs to a complaint in foreclosure, he cannot 
demand time to the report of the referee, as to the amount due. Johnson v. Masters, 49 S. 
C. 525, 27 S. E. 474. 

In an action on a liquidated demand an answer was served, and the case docketed on calendar 
one; an oral demurrer was sustained to the answer, and judgment rendered on that calendar; 
held that- it was unnecessary for the plaintiff to prove his case before the jury, the defendant 
could not object to his doing so. Jones v. Garlington, 44 S. C. 533, 22 S. E. 741. 

Affidavit of default. Vander Veen v. Wheeler, 76 S. C. 177, 56 S. B. 679. 

In equity cases plaintiff is not entitled to judgment by default, but must establish his right 
to relief sought. Cannady v. Martin, 72 S. C. 131, 51 S. E. 549. 

In action to recover real estate "relief to be afforded plaintiff shall be ascertained" by verdict 
of a jury. Kaylor v. Hiller, 72 S. C. 436, 52 S. E. 120. 

Order permiting party to file answer after default of leave to answer is administrative order 
and within discretion of a succeeding Judge to modify by permitting answer to be filed after 



OF SOUTH CAEOLINA 203 

second default. Kaylor v. Hiller, 72 S. C. 433, 52 S. E. 120, distinguishing Brown v. Easterling, 
59 S. C. 479. 

Remedy against default judgment. Gillian v. Gillian, 65 S. C. 129, 131, 43 S. E. 386. 

2. When Service of Summons by Publication. — In actions where the 
service of the summons was by publication, the plaintiff may, in like man- 
ner, apply for judgment, and the Court must thereupon require proof to 
be made of the demand mentioned in the complaint, and, if the defendant 
be not a resident of the State, must require the plaintiff or his agent to be 
examined, on oath, respecting any payments that have been made to the 
plaintiff, or to any one for his use, on account of such demand, and may 
render judgment for the amount which he is entitled to recover. Before 
rendering judgment, the Court may, in its discretion, require the plaintiff 
to cause to be filed, satisfactory security, to abide the order of the Court, 
touching the restitution of any estate or effects which may be directed by 
such judgment to be transferred or delivered, or the restitution of any 
money that may be collected under or by virtue of such judgment, in case 
the defendant or his representatives shall apply and be admitted to defend 
the action, and shall succeed in such defense. 

Civ. Pro., '12, § 305 ; Civ. Pro., '02, § 267 ; 1870, XIV, § 269 ; 1873, XV, 502 ; 1882, 

XVIII, 112 ; 1884, XVIII, 709 ; 1899, XXIII, 41. 

It is not necessary that the judgment record show the reference here required to have been 
had. Clemson College v. Pickens, 42 S. C. 511, 20 S. E. 401. 

(527) § 3. Judgment on Frivolous Demurrer, Answer, or Reply. — If 

a demurrer, answer, or reply be frivolous, the party prejudiced thereby 
upon a previous notice of five days, may apply to a Judge of the Court, 
either in or out of the Court, for judgment thereon, and judgment may be 
given accordingly. 
Civ. Pro., '12, § 306 ; Civ. Pro., '02, § 268 ; 1870, XIV, § 270. 

An answer, to be adjudged frivolouus, must be clearly so in its whole scope and bearing, and 
not merely through a formal defect that might be cured by amendment. If argument is 
necessary to show its character as frivolous, the Court will not dispose of it as such. Boylston v. 
Crews, 2 S. C. 422. 

An answer is frivolous when it fails to deny any allegation of the complaint or to state 
any new matter by way of defense. American Co. v. Hill, 27 S. C. 164, 3 S. E. 82. 

But to make the answer frivolous the objection must extend to and embrace the whole answer, 
so that nothing is left of it that can entitle the party to trial. Tharin v. Seabrook, 6 S. C. 113. 
So that answer that presents two issues material to plaintiff's case is not frivolous. Hall v. 
Woodward, 30 S. C. 564, 9 S. E. 684: Machine Co. v. Henry, 43 S. C. 17, 20 S. E. 790. 

An answer denying that defendant "ever was indebted to the plaintiff in any sum whatever, 
exceeding eighty dollars" held frivolous. Grayson v. Harris, 37 S. C. 606, 16 S. E. 154. 
So also is an answer presenting no issues which can be determined in the action ; as attempting 
to interpose a counterclaim in an action for claim and delivery. Badham v. Brabham, 54 S. 
C. 402, 32 S. E. 444. This motion may be made at the time of serving written demurrer. lb. 
Where the motion is heard at chambers, and the answer adjudged frivolous, judgment cannot be 
then and there given as by default for the plaintiff. lb. 

Code of Civil Procedure makes no provision for summarily disposing- of frivolous complaint. 
Pishburne v. Minott, 72 S. C. 569, 52 S. E. 648. 

Answer denying material jurisdictional averments not frivolous. Peacock v. Williams, 110 
Fed. 915. 

To be adjudged frivolous, whole answer must be clearly so. Peacock v. Williams, 110 
Fed. 915, 916. 

When an answer has been stricken out as sham under this Section, and the cause in Court, 
it may render judgment thereon as in case of default or for want of a plea. 

Chemical Corp. v. Farmington Corp., 100 S. C. 196, 84 S. E. 710. 



CHAPTER II. 

Issues and the Mode of Trial. 

(528) § 1. The Different Kinds of Issues. — Issues arise upon the 
pleadings when a fact or conclusion of law is maintained by the one party 
and controverted by the other. They are of two kinds : 

1. Of law ; and 

2. Of fact. 

Civ. Pro., '12, § 307 ; Civ. Pro., '02, § 269 ; 1870, XIV, § 271. 



204 CODE OF CIVIL PROCEDURE 

Where plaintiff has already brought two proceedings for partition involving the question of 
paramount title as between himself and defendant, he has exhausted his remedies as prescribed 
by Section 317 sbd. 2, limiting each plaintiff to two actions for the recovery of real property. 
It is the substance rather than the name given a pleading which determines its nature, for all 
forms having been abolished, every controversy in a court involving an issue on which depends 
substantial rights, is an action. 

Walsh V. Evans, 112 S. C. 136; 99 S. E. 546. 

(529) § 2. Issue of Law. — An issue of law arises: 

1. Upon a demurrer to the complaint, answer, or reply, or to some part 
thereof. 

Civ. Pro., '12, § 308 ; Civ. Pro., '02, § 270 ; 1S70, XIV, § 272. 
Railroad Co. v. Gibbes, 23 S. C. 370. 

(530) § 3. Issue of Fact. — An issue of fact arises: 

1. Upon a material allegation in the complaint controverted by the an- 
swer; or, 

2. Upon new matter in the answer controverted by the reply; or, 

3. Upon new matter in the reply except an issue of law is joined thereon. 
Civ. Pro., '12, § 309 ; Civ. Pro., '02, § 271 ; 1870, XIV, § 273. 

See note to Section 528, ante, which gives full digest of Walsh v. Evans, 112 S. C. 136; 
99 S. E. 546. See, also, Sees. 2, 308, 528 and 530 of this volume. 

(531) § 4. On Issues of Both Law and Fact, the Issues to Be Tried To- 
gether. — Issues, both of law and of fact, may arise upon different parts of 
the pleadings in the same action. 

In such case the cause shall be placed on the calendar of issues of fact, 
and the issues shall be tried together, unless the Court otherwise direct. 
Civ. Pro., '12, § 310 ; Civ. Pro., '02, § 272 ; 1870, XIV, § 274 ; 1873, XV, 498. 

(532) § 5. Trial Defined. — A trial is the judicial examination of the 
issues between the parties, whether they be issues of law or fact. 

Civ. Pro., '12, § 311 ; Civ. Pro., '02, § 273 ; 1870, XIV, § 275. 
Meetz V. Railroad Co., 23 S. C. 13. 

(533) § 6. Issues — How Tried. — An issue of law must be tried by the 
Court, as also cases in chancery, unless they be referred as provided in 
Chapter V of this Title. An issue of fact, in an action for the recovery 
of money only, or of specific real or personal property, must be tried by 
a jury, unless a jury trial be waived, as provided in Section 588, or a ref- 
erence be ordered. 

1870, XIV, § 276. 

This Section not affected by the Master's Act — 16 Stat. 608. Chapman v. Lipscomb, 15 
S. C. 470. 

This Section specifies the case in which a trial by jury may be demanded as a legal right. 
Rollin V. Whipper, 17 S. C. 32. 

An action to set aside a deed of Sheriff on the ground that the judgment debtor held the 
land as trustee for plaintiff, is not an action to recover real property. Price v. Bowen, 4 
S. C. 151. 

Title to land must be so tried; it cannot be tried on motion by assignee of land to discharge 
attachment thereon. Copeland v. Piedmont Ins. Co., 17 S. C. 116. And defendant does not 
waive the right by failure to demand it. DeWalt v. Kinard, 19 S. C. 286. 

An action for the recovery of money only does not require a jury trial, unless the pleadings 
raise an issue of fact. Railroad Co. v. GilDbes, 23 S. C. 370. If the only issue raised is one 
of law, it must be tried by the Court. Ih. 

An action for partition, where the question of title arises, it is not an issue out of chancery, 
but for trial by a jury at law. Addickes v. Lewry, 12 S. C. 97; Brock v. Nelson, 29' S. C. 49, 6 
S. E. 899; Reams v. Spann, 28 S. C. 530,6 S. E. 325; Carrian v. Evans, 31 S. C. 262, 9 S. E. 
852; Capell v. Moses, 36 S. C. 559, 15 S. E. 711. Or where in equity cause defendant sets 
up title to land in controversy which, if sustained, would defeat the action, he is entitled to 
a jury trial of that issue. Adickes v. Lowry, 12 S. C. 108; Cooper v. Smith, 16 S. C. 133; 
Smith V. Brvce, 17 S. C. 544; Chapman v. Lipscomb, 18 S. C. 232; DeWalt v. Kinard, 19 S. 
C. 289; McGee v. Hall, 23 S. C. 388; Sale v. Megget, 25 S. C. 72; Reagin v. Bishop, 25 
S. C. 585; Pelzer v. Hughes, 27 S. C. 408, 3 S. E. 781; Dupont v. DuBose, 33 S. C. 389. 



OF SOUTH CAROLINA 205 

11 S. E. 1073. But where the action is in equity for cancellation of deed for fraud, a trial 
by jury is not demandable of right. Dupont v. DuBose, 33 S. C. 389, 11 S. E. 1073. 

Where a defendant is entitled to specific personal property in hands of executor, answers 
the complaint and agrees to a reference to the Master of all the issues, he thereby waives right 
to a trial by jury of his title to such property. Trenholm v. Morgan, 28 S. C. 268, 5 S. E. 721. 

On appeal from Probate Court there is only a right of jury trial of those issues required 
to be so tried by this Section. Stewart v. Blease, 4 S. C. 37; Lucken v. Wichman, 5 S. C. 411; 
Prater v. Whipple, 16 S. C. 40; Rollin v. Whipper, 17 S. C. 32; Ex parte White, 33 S. C. 442, 

12 S. E. .5; In re Shier, 35 S. C. 417, 14 S. E. 931; Hughes v. Kirkpatrick, 37 S. C. 161, 
15 S. E. 912. 

Consent to a reference is waiver of a trial by jury. Meetz v. Railroad Co., 23 S. C. 25 ; 
Griffith V. Cromley, 58 S. C. 458, 36 S. E. 738, and other cases cited in note to § 588. 

Where title is involved in an action for partition, it must be determined by a jury, unless a 
jury trial is waived. Osborne v. Osborne, 41 S. C. 195, 19 S. E. 494. So in an action for 
trespass and to enjoin continuance of same. Alston v. Limehouse, 60 S. 0. 559, 39 S. E. 188; 
Threatt v. Brewer Mining Co., 42 S. C. 92, 19 S. E. 1009; Heyward v. Farmers Min. Co., 
42 S. C. 138, 19 S. E. 963. Where the issues are equitable the cause must be heard by the 
Court. Greenville v. Ormond, 44 S. C. 119, 21 S. E. 64. So in an action for foreclosure 
where usury is interposed as a defense and counterclaim. McLaurin v. Hodges, 43 S. C. 
187, 20 S. E. 991. So in action for foreclosure where counterclaim is interposed for damages 
from breach of warranty. Sullivan Hardware Co. v. Washington, 47 S. C. 187, 25 S. E. 45. 

In actions where the issues are partly legal and partly equitable. Greenville v. Ormond, 44 
S. C. 119, 21 S. E. 642. 

Motion to recommit to Master discretionary Halk v. Stoddard, 62 S. C. 564, 40 S. E. 957. 
Issue as to existence of nuisance must be tried by jury. Lipscomb v. Littlejohn, 63 S. C. 
38, 40 S. E. 1023. 

Issue of title in this case must be tried by jury. McCreery Land and Investment Co. v. 
Myers, 70 S. C. 282, 49 S. E. 848. 

Plaintiff may discontinue suit where issue has been framed under this Section. Forrest v. 
City Council, 65 S. C. 501, 43 S. E. 952; Montague v. Best, 65 S. C. 457, 43 S. E. 963. 

Limited so as to require submission to the jurv of strictly legal issues. Keenan v. Leslie, 79 S. 
C. 477, 60 S. E. 1114. 

Finding of jury not conclusive on equitable issue ; change in reference thereto. Wood v. 
Pacolet Mfg. Co., " 80 S. C. 47, 61 S. E. 95. 

Order refusing to submit issues to jury in chancery case is not appealable. Lawrence v. 
Lawrence, 82 S. C. 150, 63 S. E. 690. 

Where complaint alleges indebtedness by note and pledge of bonds, etc., and seeks foreclosure 
of pledge, and the answer admits the indebtedness, laut sets up defenses to the collateral, only 
equitable issues are raised. Bank v. Chickasaw Soap Co., 70 S. C. 253, 49 S. E. 845. 

The order in which equitable and legal issues shall be tried is discretionary with the 
Court. McCreery Co. v. Mvers, 70 S. C. 282, 49 S. E. 848; DuBose v. Kell, 76 S. C. 313, 
56 S. E. 968; Hiekson Lumber Co. v. Stallings, 83 S. C. 49, 64 S. E. 1015. 

Accounting between parties on breach of contract. Price v. Middleton, 75 S. C. 105, 55 
S. E. 156. 

Innocent purchaser and equitable issue. Armour & Co. v. Ross, 75 S. C. 206, 55 S. E. 315. 

Where notice under the recording act is legal. lb. 

Compulsory reference may be ordered in equitable action. Greenwood Granite and Constr. Co. v. 
Ware Shoals Mfg. Co. 78 S. C. 169, 58 S. E. 765. 

Confusion of boundaries not sufficient to give equitable jurisdiction. McCreery Co. v. Myers, 
70 S. C. 285, 49 S. E. 848. 

Common law actions are; 1. For recovery of specific real estate; 2. For recovery of specific 
personal property, and 3. For money only; all others are equitable. Ex parte Landrum, 69 
S. C. 141, 48 S. E. 47; Pratt v. Timmerman, 69 S. C. 196, 48 S. E. 255; Gregory v. Perry, 
66 S. C. 455, 45 S. E. 4; Brock v. Kirkpatrick, 69 S. C. 233, 48 S. E. 72. 

Trial of issues of title in action for partition. Kimbrell v. Page, 70 S. C. 218, 49 S. E. 477. 

Legal issues in equitable action triable by jury. Poston v. Ingraham, 76 S. C. 167, 56 S. E. 780. 

Equitable issues of fraud properly triable first. DuBose v. Kell, 76 S. C. 313, 56 S. E. 968. 

Action for reformation of contract and to recover possession of leased land is legal. Central 
Nat. Bank v. Duncan, 77 S. C. 9, 57 S. E. 531. 

Issue as to paramount title in partition case must be tried bv jury. Windham v. Howell, 78 
S. C. 191, 59 S. E. 852. 

When judgment on issue ends cause. Poston v. Ingraham, 76 S. C. 167, 56 S. E. 780. 

Waiver of objection to order. Montague v. Best, 65 S. C. 458, 43 S. E. 963. 

Frierson v. Jenkins, 75 S. C. 471, 476, 55 S. E. 890. 

While in trying issues out of chancery it is better for the Judge not to tell the jury he is 
not bound by their findings, appellant was not prejudiced by his so stating. Mullaly v. Smyth, 
96 S. C. 14; 79 S. E. 634. 

In a suit alleging mistake and fraud and asking injunction and recovery, was an action 
in equity and under this Section the provisions for "recovery of money only" do not apply. 
Bank v. Alderman, 106 S. C. 386; 91 S. E. 296. 

In actions in equity, although parties comply with the Statute and rule 28 of the Circuit 
Court, denial of a jurv trial is bv express terms of this Section, within the -discretion of the 
Court. Erskine v. Erskine, 107 S.' C. 233, 92 S. E. 465. 

Under this Section, a verdict in an action to recover an unlawful performance by a 
bankrupt is not reviewable on appeal. Hubbard v. Hollis, 107 S. C. 325; 92 S. E. 1040. 

Complaint alleging that defendant wilfully retains possession of certain personal nroperty 
to the damage of plaintiff and that the same is unlawfully and wilfullv withheld from plaintiff, 
and further setting up other actual and punitive damages, does not state a cause of action for 
"recovery of money only," under the provisions of this Section. Rainwater v. Bank, 108 S. 
C. 206; 93 _S. C. 770. _ 

In an action for specific performance of a contract for the sale of land where the answer 
sets up that there was no such contract, but merely an option, the terms of which had not 
been complied with, is not such an action as comes within the provisions of this Section. 
Murph V. Smoak, 113 S. C. 168; 101 S. E. 844. 

Where a claim for damages brought by the personal representative of a deceased who was 
lynched within the County, was presented to a County Board of Commissioners and refused, 
was not res judicata for it was clearly the intention of the Constitution and the Statute that 
such action should be brought in the Court of Common Pleas ; the Board of Commissioners not 
having jurisdiction thereof. Best v. Barnwell County, 114 S. C. 123; 103 S. E. 479. 



206 CODE OF CIVIL PROCEDURE 

Framing of Issues. — In all equity causes now pending or hereafter in- 
stituted in the Courts of Common Pleas of this State, the presiding Judge 
may, in his discretion, cause to be framed an issue or issues of fact, to 
be tried by a jury. 

1890, XX, 696. 

Trial of Issues Regulated. — Such issues shall be tried at the same term 
of Court at which they are ordered, and, if necessary, a day shall be set 
for the trial of the same : Provided, That a continuance may be ordered 
by the Court in proper cases. 

1890, XX, 696. 

When to Be Ordered. — Upon the first day of the term, immediately 
after the call of Calendar 3, the Presiding Judge shall call for cases in 
which such issues are desired, and if any are presented in which such issues 
«re, in his judgment, proper, he shall at once call the same to be framed and 
placed upon the proper calendar for trial. 

1890, XX, 696. 

Force of Verdict — New Trials — Exceptions and Appeals. — The find- 
ings of fact upon such issues by the jury shall be conclusive of the same : 
Provided, That the Presiding Judge may grant new trials therein, accord- 
ing to the practice in other jury trials : And provided, further, That ex- 
ceptions to the rulings of the Presiding Judge upon such trials may be 
taken by either party, and such rulings may be reviewed by the Supreme 
Court upon appeal from the final judgment. 

1890, XX, 696. 

Trial and Decision at Same Term — Appeal. — At some time during the 
term the Presiding Judge shall hear the cause out of which such issues are 
ordered, and shall, some time during said term or thereafter, file his de- 
cision therein as in other equity causes, from which decision there shall be 
the same right of appeal now existing in like causes. 

Civ. Pro., '12, § 312 ; Civ. Pro., '02, § 274 ; 1890, XX, 696. 

Refusal to frame an issue under this Section does not affect right of Judge to order an issue 
in chancery. Land Mortgage Co. v. Gillam, 49 S. 0. 345, 26 S. E. 990; Hammond v. 
Foreman, 43 S. C. 264, 21 S. E. 3. An order of reference preparatory to hearing on merits, 
held not to interfere with right to an issue under this Section. Bank v. Fennell. 55 S. 0. 379, 
33 S. E. 485. The discretion of the Circuit Judge in refusing to frame issues under this 
Section will not he interfered with on appeal. DeLoach v. Sarratt, 55 S. C. 276, 33 S. E. 2; 
Neal V. Suber, 56 S. C. 298, 33 S. E. 463. 

(534) § 7. Issues Triable by Court. — Every other issue is triable by 
the Court, which, however, may order the whole issue, or any specific ques- 
tion of fact involved therein, to be tried by a jury, or may refer it, as pro- 
vided in Sections 592 and 593. 

Civ. Pro., '12, § 313 ; Civ. Pro., '02, § 275 ; 1870, XIV, § 277. 

This Section not affected by Master's Act — 16 Stat. 608. Lipscomb v. Chapman, 15 S. 0. 470 

Construing this and preceding Section together, it is conclusive that there are two general 
modes of trial, i. e. trials by Court and trials by jury. To the Court belongs all issues of law 
and all cases in chancery, and to the ■'ury all questions of fact in cases at law for the 
recovery of money or of any specific real or personal property. Meetz v. Railroad Co., 23 S. C. 1. 

Under this Section a party has no right to demand a jury, unless he -proceeds according 
to the 28th Rule of Circuit Court. Lucken v. Wichman, 5 S. C. 411; In re Shier, 35 S. C. 417, 
14 S. E. 931. . , ^ 

The mode of trial, whether by the judge, a referee or a jury, is discretionary with the Court. 
Lucken v. Wichman, 5 S. C. 411. 

The constitutional declaration that "the right of jury trial shall remain inviolate" does not 
apply to cases within the equitable jurisdiction of the Court. lb. And in such cases neither party 
has the rig-ht to demand a submission of the issues to a jury. Pelzer v. Hughes, 27 S. C. 
408, 3 S. E. 781. An action to set aside a Sheriff's conveyance of land, sold under execution, 



OF SOUTH CAROLINA 207 

on the ground that judgment debtor held the land as trustee of plaintiffs, is an equitable action 
and triable by the Court. Price v. Brown, 4 S. C. 157. 

Summons to renew execution is not case for issues out of chancery. Adams v. Richardson, 
30 S. C. 217, 9 S. E. 95. 

Where Judge orders such issues of fact to be tried by a jury, he does so only that he may 
be aided bv their verdict; he is not to be controlled thereby. Flinn v. Brown, 6 S. C. 209; 
Gadsden v. Whaley, 9 S. C. 147; Ivy v. Claussen, 14 S. C. 273; Small v. Small, 16 S. C. 76; 
Grierson v. Harmon, 16 S. C. 619; Peake v. Peake, 17 S. C. 425; Pelzer v. Hughes, 27 S. C. 
408, 3 S. B. 781. And such findings of the jury are properly to be considered on new trial 
by the Judge as ordered by the Supreme Court. Rynerson v. Allison, 30 S. C. 534, 9 S. E. 656. 

But all equitable issues must be tried by the Judge either alone or with such aid of a jury. 
Gadsden v. Whaley, 9 S. C. 147; Sloan v. Westfield, 11 S. C. 447; Adickes v. Lowry, 12 S. 
C. 108; Cooper v. Smith, 16 S. 0. 331. 

A case involving cancellation of deed for fraud may be referred to the Master. Dupont v. 
DuBose, 33 S. C. 389, 11 S. E. 1073. 

On appeal from decree of Probate Court, declaring a paper offered for probate no will, it 
was error in Circuit Judge to form issues and submit them to jury without notice to appellant, 
and a judgment based on verdict on such issues must be set aside. In re Shier, 35 S. C. 
417, 14 S. E. 931. 

On appeal from Probate Court disallowing claim against an estate, the appellant is not entitled 
as of right to a jury trial. Hughes v. Kirkpatrick, 37 S. C. 161, 15 S. E. 912. 

Plaintiff in action for dower desiring verdict on question of coverture must request submission 
of issue to jury. Frierson v. Jenkins, 75 S. C. 476, 55 S. E. 890. 

Nonsuit is improper on trial of issue in chancery. Southern Rv. Co. v. Beaudrot, 63 S. C. 
266, 41 S. E. 299; Williams v. Halford, 64 S. C. 403, 42 S. E. 187. Complaint to remove 
cloud on title an equitable issue. Shute v. Shute, 79 S. C. 427, 60 S. E. 961. 

(535) § 8. Summons and Complaint to Be Filed in Clerk's Office — 
Docketing Cases. — In all issues to be tried by the Court or a jury the 
plaintiff shall, at least fourteen days before Court, file in the Clerk's office 
the summons and complaint in the cause, endorsing thereon the nature of 
the issue and the number of the calendar upon which the same shall be 
placed, and if the plaintiff fail to do so the defendant, seven days before 
the Court, may file copies of said papers with a like endorsement, and the 
Clerk shall thereupon place said cause upon its appropriate calendar, and 
it shall stand for trial without any further notice of trial or notice of issue. 
There shall be three calendars for the Court of Common Pleas, and the 
Clerk shall arrange the causes thereon as follows : Upon Calendar 1 shall 
be placed all cases and issues to be passed upon by a jury. Upon Calen- 
dar 2 shall be placed all cases to be passed upon by the Court, including 
all motions and rules to show cause. Upon Calendar 3 shall be placed all 
cases where judgments by default are to be taken, and on the opening of 
the Court of Common Pleas this calendar shall be called first in order. 

Carrying the Dockets Forward — Forfeiture of Fees. — The Clerk 
shall, within twenty days after every adjournment of the Court of Com- 
mon Pleas, carry forward on Calendars Nos. 1 and 2, for trial or hear- 
ing at the next term, all causes not finally disposed of at the preceding 
term, and shall enter in regular order all subsequent causes duly filed and 
endorsed as above provided, and upon entering the same shall endorse 
upon the summons the date of filing, the number of the calendar in which 
the cause is entered, and its number on the calendar. In case of his failure 
to comply with any of the requirements of this Section, the Clerk shall for- 
feit all docketing fees for the term of the Court next succeeding. 

Civ. Pro., '12, § 314 ; Civ. Pro., '02, § 276 ; 1870, XIV, § 27.8 ; 1873, XV, 498 ; 1882, 
XVIII, 41 ; 1887. XIX, 836 ; 1903, XXIV, 131. 

There is nothing in this Section which declares that failure to have the case so docketed 
within a prescribed time after action begun puts a party out of Court. Hagood v. Rilev, 21 
S. C. 143. 6 . . 

When the time for answering expires, after the day for the Court to open, but before it is 
actually opened, the case may be put on Calendar 3 and judgment by default taken. McComb v. 
Woodbury, 13 S. C. 479. 

Sufficiency of endorsement by plaintiff of istructions to docket. Bank v. Thompson, 46 S. 
C. 499, 24 S. E. 332. The placing on the docket fourteen davs before Court is the notice 
of trial. lb.; Steflfens v. Bulwinkle, 48 S. C. 357, 26 S. E. 666. Where case is docketed on 
the wrong calendar, the remedy is by motion to transfer. Threatt v. Brewer Min. Co., 42 S. 
C. 92, 19 S. E. 1009. The requirement that a case be docketed before trial does not apply 



208 CODE OF CIVIL PROCEDURE 

to motions for orders preparatory to the hearing of the case on its merits. Bank v. Fennell, 
55 S. C. 379, 33 S. E. 485. Answer being stricken out on oral demurrer, retainine the case 
on Calendar 1, and there giving judgment, held harmless error. Jones v. Garlington, 44 
S. C. 533, 22 S. E. 741. A legal action to which an equitable defense has been interposed, 
which was docketed on Calendar 1, may be transferred to Calendar 2 in order to have the 
equitable defense tried by the Court. Knox v. Campbell, 52 S. C. 461, 30 S. E. 485. 

Hearing' demurrer in case on Calendar 2 is mere irregularity. Abel v. Southern Railway, 
73 S. C. 178, 52 S. E. 962. 

Hearing on wrong calendar mere irregularity. Able v. Southern Railway, 73 S. C. 178, 
52 S. E. 962. 

Placing on wrong calendar is a mere irregularity, and not a jurisdictional defect. Ward v. 
Western U. Tel. Co., 62 S. C. 279, 40 S. E. 670; Carolina Grocery Co. v. Moore, 63 S. C. 
184, 41 S. E. 88. Case is properly retained on Calendar 2 after withdrawal of demurrer to 
give judgment on admission of counterclaim. Melchers & Co. v. Moore, 62 S. C. 386, 40 S. E. 901. 

Petition for removal presented at term at which the cause could be first tried. Carson v. 
Hyatt, 118 U. S. 279, 289, 30 L. Ed. 167. 

Where a cause was properly docketed for trial, the defendant cannot be heard to complaint 
that it was reached and ordered to trial before those ahead of it on the calendar were tried 
and disposed of, especially where he does not claim to have been taken by surprise or caught 
unawares and unprepared, not even that he had a meritorious defense, largely a matter within 
the discretion of the Judge as to when cases shall be tried. Gin Co. v. Counts, 98 S. C. 
136; 82 S. E. 391. 

Under this Section, providing for the docketing of causes 14 days before Court by plaintiff 
and the filing of an answer 7 days before Court by defendant, is intended to take the place 
of any other notice of trial or notice of issue ; but this Section was not intended or does not 
indicate that the power of the court to pass such orders in pendings cases as may be necessary 
to speed them to a hearing on the merits. State by Atty. Gen. v. Gibbes, 109 S. C. 135 ; 
95 S. E. 346. 

(536) § 9. Court Stenographers — How Appointed. — 1. There shall be 
fourteen Court stenographers, one for each Judicial Circuit of the State, 
who shall be appointed by the Circuit Judge of the respective circuits for 
a period not exceeding the term for which the Circuit Judge making 
the appointment was elected, and such Court stenographer shall be sub- 
ject to removal by the Circuit Judge making the appointment. It shall be 
the duty of every stenographer so appointed, under the direction of the 
Presiding Judge of his Circuit, to take full stenographic notes of all pro- 
ceedings, including the rulings and charge of the Court in every trial 
thereat; and in case the Presiding Judge, or the Solicitor, for use in crim- 
inal cases, shall require a transcript of said stenographic notes, the sten- 
ographer shall furnish the same written out in full. 

1889, XX, 361 ; 1906, XXV, 7 ; 1910, XXVI, 713 ; 1914, XXVIIi, 636 ; 1916, XXIX, 
688. 

2. Compensation of Stenographers. — Each Circuit Court stenographer 
shall receive an annual salary of twenty-one hundred ($2,100) dollars; 
Provided, That this provision shall not apply to the stenographers of the 
Court of General Sessions of the Fifth and Seventh Judicial Circuits. The 
said salaries shall be payable monthly upon warrants of the Comptroller 
General. The said stenographers shall also receive a fee of five cents per 
hundred words for all transcripts furnished litigants, except in the Second, 
Fifth, Sixth, Seventh and Twelfth Circuits and in the Third and Elev- 
enth Circuits in civil cases, where the fees for transcripts shall be ten 
cents per folio of one hundred words, which fees shall be paid by the 
parties litigant, except in criminal cases where the defendant satisfies the 
Court that he is unable to pay for such transcript, when the same shall be 
furnished without fee by the Court Stenographer: Provided, That any 
failure on the part of the Court Stenographer, to furnish a transcript of 
any case, or any part thereof, within thirty days from the time a demand 
be made, shall forfeit his right to any pay for said transcript. Any sum 
so paid by any party shall be considered a necessary disbursement in the 
taxation of costs. 

Civ. Pro., '12, § 315; Civ. Pro., '02, §§ 277, 278; 1906, XXV, 7; 1910, XXVI, 713; 
1912, XXVII, 767, 774; 1919, XXXI, 101. 



OF SOUTH CAROLINA 209 

In making up appeal, appellant should serve his proposed case, making a narrative statement 
of so much of the testimony as may be pertinent and if respondent objects, he may propose 
amendments, and in the event the parties fail to agree, the case must be submitted to the 
Court for settlement, and the Court may, under this Section, require the stenographer to 
furnish him with a transcript of the testimony. Outlaw v. Nat. Council of J. O. U. A. M. 
104 S. C. 331, 88 S. E. 801. 

(537) § 10. Circuit Judges to Appoint Special Stenographers When 
Stenographer is Disabled. — The Circuit Judges of this State are hereby 
authorized to appoint a special Court stenographer to act in the place and 
stead of the regular Court stenographer in case of sickness, absence or 
inability to act at any term or part of a term of either the Court of Com- 
mon Pleas or General Sessions ; and such stenographer, when so appointed, 
shall receive not more than the sum of seven and one-half dollars per day 
for each day he may be in attendance upon said Court. It shall be the 
duty of the Presiding Judge to certify the number of days any such spe- 
cial stenographer may be engaged in the Courts as such ; upon this certif- 
icate the Comptroller General shall draw his warrant upon the State Treas- 
urer for the amount due said stenographer for his services, and the said 
State Treasurer is authorized to pay the same. 

Civ. Pro., '12, § 316 ; 190S, XXV, 1012. 

(538) § 11. Order of Disposing of Issues on the Calendar. — The issues 
on the calendar shall be disposed of in the following order, unless, for the 
Convenience of parties or the dispatch of business, the Court shall otherwise 
direct : 

1. Issues of fact to be tried by a jury. 

2. Issues of fact to be tried by the Court. 

3. Issues of law. 

Civ. Pro., '12, § 317 ; Civ. Pro., '02, § 279 ; 1870, XIV, § 281. 

The order in which issues should be tried is discretionary with the Court. Knox v. Camp- 
bell, 52 S. C. 461, 30 S. E. 485. Retaining case on Calendar 1, and there giving judgment, 
after sustaining demurrer to answer, if error, is harmless. Jones v. Garlington, 44 S. C. 533, 22 
S. E. 741. 

It is left to the discretion of the presiding Judge whether legal or equitable issues shall be 
first tried. DuBose v. Kell, 76 S. C. 316, 56 S. E. 968. 



CHAPTER III. 

Trial by Jury. 

Aeticle 1. Jury Trial — General Provisions, 209. 

Article 2. Jury Commissioners — Drawing and Summoning Jurors, 213. 

Article 3. Qualification, Exemption, Empaneling and Pay of Jurors, 219. 

Article 4. Objection to Jurors— Verdict, 222. 

Article 5. Miscellaneous Provisions, 224. 



ARTICLE I. 

JURY TRIAL— GENERAL PROVISIONS. 

(539) § 1. Trial — Separate Trials. — Either party complying with 
the requirements of Section 535 may bring the issue to trial, and, in 
absence of the adverse party, unless the Court for good cause otherwise 
direct, may proceed with his case, and take a dismissal of the complaint, 

15 C C P 



210 CODE OF CIVIL PROCEDURE 

or a verdict or judgment, as the case may require. A separate trial be- 
tween a plaintiff and any of the several defendants may be allowed by the 
Court whenever, in its opinion, justice will thereby be promoted. 
Civ. Pro., '12, § 318 ; Civ. Pro., '02, § 280 ; 1870, XIV, § 282. 

Under this Section, severance is a question for the discretion of the trial Court. Brown v. 
R. R. Co., Ill S. C. 141; 96 S. E. 701. 

(540) § 2. Court to Be Furnished With Copy of Pleadings.— When 

the issue shall be brought to trial by the plaintiff, he shall furnish the Court 
with a copy of the summons and pleadings, with the offer of defendant, 
if any shall have been made. When the issue shall be brought to trial by 
the defendant, and the plaintiff shall neglect or refuse to furnish the Court 
with a copy of the summons and pleadings and the offer of the defendant, 
the same may be furnished by the defendant. 

Civ. Pro., '12, § 319; Civ. Pro., '02, § 281; 1870, XIV, §283 

(541) § 3. General and Special Verdicts Defined. — A general verdict 
is that by which the jury pronounce generally upon all or any of the issues, 
either in favor of the plaintiff or defendant. A special verdict is that by 
which the jury finds the facts only, leaving the judgment to the Court. 

Civ. Pro., '12, § 320; Civ. Pro., '02, § 282; 1870, XIV, § 284. 

(542) § 4. When Jury May Render Special or General Verdict — Di- 
recting- Special Findings. — In an action for the recovery of specific per- 
sonal property, if the property have not been delivered to the plaintiff, or 
if it have, and the defendant, by his answer, claim a return thereof, the 
jury shall assess the value of the property, if their verdict be in favor of 
the plaintiff, or if they find in favor of the defendant, and that he is enti- 
tled to a return thereof, and may at the same time assess the damages, 
both actual and punitive, if any are claimed in the complaint or answer, 
which the prevailing party has sustained by reason of the detention or 
taking and withholding such property. In every action for the recovery 
of money only, or specific real property, the jury in their discretion may 
render a general or special verdict. In all other cases, the Court may 
direct the jury to find a special verdict in writing upon any or all of the 
issues, and in all cases may instruct them, if they render a general verdict, 
to find upon particular questions of fact, to be stated in writing, and may 
direct a written finding thereon. The special verdict or finding shall be 
filed with the Clerk, and entered upon the minutes. 

Civ. Pro., '02, § 283 ; 1870, XIV, § 285 . 

Actions for Recovery of Personal Property — What Jury May Find. 
— In every action for the recovery of personal property which has been 
pledged in any way to secure credit or debt, the defendant may plead his 
counterclaim arising out of the same transaction, and the jury in such case 
may find, in addition to the verdicts now provided by law, the amount due 
to the plaintiff if any ; and in such case the defendant shall have the right 
to pay said amount, and costs, and the property shall thereafter be free 
from the encumbrance. 

Civ. Pro., '12, § 321 ; 1909, XXVI, 161. 

Where plaintiff takes possession of the property, a verdict in the words, "We find for the 
defendant the return of the property of $507.95," is in compliance with this Section. Bardin v. 
Drafts, 10 S. C. 493. But where the action is to recover "patterns" in foundry proved to be 



OF SOUTH CAROLINA . 211 

worth $5,000, and the Judge charged that defendants were entitled to a part thereof, the verdict 
in these words,, "We find the plaintiff patterns the value of $100," does not identify the property, 
and is void. Eason v. Kelly, 18 S. C. 381. 

In such action a verdict which calls for a delivery or return of the property is sufficient and 
illegal, unless it assess the value of the property, even though there be no testimony as to value. 
The Section is mandatory. Eason v. Kelly, 18 S. C. 381; Thompson v. Lee, 19 S. C. 489; 
Lockhart v. Little, 30 S. C. 326, 9 S. E. 511; Bobbins v. Slattery, 30 S. C. 328, 9 S. E. 510. 

An alternative verdict is only required when the defendant is entitled to the return of the 
property. Finley v. Cudd, 42 S. C. 121, 20 S. E. 32. 

Where the defendants are not jointly liable, a general verdict for the plaintiff for certain 
property valued at a certain sum, with damages for detention, is too indefinite, as it should be 
against each defendant separately for the specific property in his possession, or its value. Norris 
V. Clinkscales, 47 S. C. 488, 25 S. E. 797. 

To entitle plaintiff to damages he must give some proof thereof. Ih. As to what damages are 
allowed. Miami Powder Co. v. Railroad, 47 S. C. 324, 25 S. E. 153; Brock Bolton, 37 S. C. 40, 
16 S. E. 370; Lipscomb v. Tanner, 31 S C. 49, 9 S. E. 733; Loeb v. Mann, 39 S. C. 465; 
18 S. E. 1; Jones v. Hiers, 57 S C. 427, 35 S. E. 748; Vance v. Vandercook Co., No. 2, 170 
U. S. 472; Buford v. Fannen, 1 Bay 273; Banks v. Hatton, 1 N. dc McC. 221; Kid v. Mitchell, lb., 
324. Where the_ defendant answers that the property does not belong to him, but to his 
assignee, the plaintiff cannot be adjudged to return the goods, or pay their value, to the 
defendant, but the Court, of its own motion, should compel the assignee to intervene. Wilkins v. 
Lee, 42 S. C. 31, 19 S. E. 1016. See, also, § 600, and note, post. 

Punitive damages not recoverable in claim and delivery. Tittle v. Kennedv, 71 S. C. 1, 50 
S. E. 544, 4 Am. & Eng. Ann. Cas. 68; Bravton v. Beall, 73 S. C. 313, 53 S. E. 641. 

Form of Verdict; description of property Bassard v. Vaughn, 68 S. 0. 98, 46 S. E. 523; 
Phoenix Furniture Co. v. Jaudon, 75 S. C. 229, 55 S. E. 308. 

Parish v. Smith, 66 S. C. 424, 430, 45 S. E. 16. 

Issues may be sent to jury in action for damages to land. May they be in action for 
recovery of specific real property? Manson v. Dempsey, 88 S. C. 193. 

Special verdict as to title to land in suit for land conveyed by husband to mistress in violation 
of § ( — ^) Vol. IIL of the Code. Williams v. Halford, 67 S. C. 296, 45 S. E. 207. 

It is immaterial whether the jury were instructed to find a general verdict first and then 
make their special findings or the reverse. Singletary v. Seaboard Air Line Railway, 88 S. C. 565. 

In an action for claim and delivery brought by the mortgagee for the mortgaged property, 
the issues referred by consent, the referee finds the amount due on the mortgage notes and 
recommends judgment for possession of property and damages to plaintiff, may sell the property 
and apply the proceeds of sale to the notes and sue for the balance due thereon. 

Gibbes Mach. Co. v. Rivers, 94 S. C. 342; 78 S. E. 21. 

Where special issues are presented, under this Section, and the jury fails to agree on a 
verdict, it is improper to permit jury to bring in a general verdict for that would cast a doubt 
upon the logical sequence of such general verdict. Pert. Co. v. R. R. Co., 99 S. C. 187, 83 S. 
E. 36. 

Under this Section, a request is necessary in order to put the Court in error for failure to 
direct jury to find a special verdict. Castles v. S. C. L. & C. Agency, 104 S. C. 81; 88 S. E. 273. 

Under this Section, a jury may be directed to find the property's real value and also plaintiff's 
interest therein and a judgment may be ordered satisfied upon payment of plaintiff's interest. 

That defendant pleaded no counterclaim did not defeat his right to have the right of the 
mortgagee's interest determined, especially as this Section authorizes the jury to find the 
amount due plaintiff. Green v. Washington, 105 S. C. 137; 89 S. E. 649. 

Under the provisions of this Section, the Court may direct a special verdict upon any or 
all of the issues, but it is not bound to do so. Floyd v. Ins. Co., 110 S. C. 384, 96 S. E. 912. 

(543) § 5. On Special Finding With a General Verdict, Former to 
Control. — Where a special finding of facts shall be inconsistent with the 
general verdict, the former shall control the latter, and the Court shall give 
judgment accordingly. 

Civ. Pro., § 322 ; Civ. Pro , '02, 284 ; 1870, XIV, § 286. 

When an action is brought to set aside a deed of a right of way on the ground that it 
was obtained by fraud and for damag'es for constructing the railroad, on the special issue 
submitted, the jury finds the deeds were not obtained by fraud and the general verdict for 
damages is larger than the consideration expressed in the deeds, the recovery should be limited 
to the amount of consideration expressd in said deeds. Ellison v. R. R. Co., 94 S. C. 425 ; 
78 S. E. 231. 

A jury failing to agree on special issues will not be permitted to return a general verdict 
for that casts a doubt upon its logical sequence. Pert. Co. v. R. R. Co., 99 S. C. 187, 
83 S. E. 36. 

(544) § 6. Jury to Assess Defendant's Damages in Certain Cases. — 

When a verdict is found for the plaintiff in an action for the recovery of 
money, or for the defendant when a set-off for the recovery of money is 
established, beyond the amount of the plaintiff 's claim as established, the 
jury must also assess the amount of the recovery ; they may also, under the 
direction of the Court, assess the amount of the recovery when the Court 
gives judgment for the plaintiff on the answer. If a set-off, established 
at the trial, exceed the plaintiff's demand so established, judgment for the 
defendant must be given for the excess ; or if it appear that the defendant 



212 CODE OF CIVIL PROCEDURE 

is entitled to any other affirmative relief, judgment must be given accord- 
ingly. 

Civ. Pro., '12, § 323; Civ. Pro., '02, § 285; 1870, XIV, § 287. 

Relief in case of mistake in verdict after lapse of time for correcting mistake. Pelzer Mfg. Co. v. 
Hamburg, etc., Ins. Co., 71 Fed. 826, 832. 

(545) § 7. Entry of Verdict— Motion for New Trial.— 1. Upon receiv- 
ing a verdict, the Clerk shall make an entry in his minutes, specifying the 
time and place of trial, the names of the jurors and witnesses, the ver- 
dict, and either the judgment rendered thereon or an order that the cause 
be reserved for argument or further consideration. If a different direction 
be not given by the Court, the Clerk must enter judgment in conformity 
with the verdict. 2. If an exception be taken, it may be reduced to writ- 
ing at the time, or entered in the Judge's minutes, and afterwards settled 
as provided by the rules of Court, and then stated in writing in a case, or 
separately, with so much of the evidence as may be material to the ques- 
tions to be raised, but need not be sealed or signed, nor need a bill of ex- 
ceptions be made. 3. If the exceptions be, in the first instance, stated in a 
case, and it be afterwards necessary to separate them, the separation may 
be made under the direction of the Court, or a Judge thereof. 4. The 
Judge who tries the cause may, in his discretion, entertain a motion, to 
be made on his minutes, to set aside a verdict and grant a new trial upon 
exceptions, or for insufficient evidence, or for excessive damages ; but such 
motions, if heard upon the minutes, can only be heard at the same term 
at which the trial is had. When such motion is heard and decided upon 
the minutes of the Judge and an appeal is taken from the decision, a case 
or exceptions must be settled or agreed upon in the usual form, upon 
which the argument of the appeal must be had. 

Civ, Pro., '12, § 324 ; Civ. Pro., '02, § 286 ; 1870, XIV, § 288. 

Unless otherwise directed by the" Court, the Clerk must enter judgment in conformity with 
the verdict or it will be void. Eason v. Kelly, 15 S. C. 200; Ih., 18 S. C. 381; Kamisky v. 
Railroad, 25 S. C. 53. But where the judgment is based upon a verdict on an equitable issue, 
that should have been tried by the Court, it is void. Gadsden v. Whaley, 9 S. 0. 147 ; Sloan v. 
Westfield, 11 S. C. 447; Cooper v. Smith, 16 S. 0. 331. 

When upon rendition of verdict, the Court ordered the case to be transferred to Calendar 
No. 2, and that plaintiffs have leave to apply for judgment thereon, the Clerk could not enter 
judgment on the verdict. Whitesides v. Barber, 22 S. C. 47. 

This Section, as to the power of the Judges in granting new trials, is not to be restricted by 
any construction of Constitution of 1868, Art. IV, § 26. Wood v. Railroad Co., 19 S. 0. 579. 

This Section dispenses with the use of "bills of exceptions," and substitutes a statement of the 
exceptions taken at the trial, containing so much of the evidence as may be necessary to show 
the bearing of the exceptions. Caston v. Brock, 14 S. C. 104. 

Exceptions to the orders and rulings of the Judge may be taken at the trial, and, if so 
taken, they need not be served within ten days after the rising of the Court. Coleman v. 
Heller, 13 S. C. 491. 

The better practice is to notify the Court at the time that the party "excepts," and have it 
so noted on the record ; but it has been held that when it appears from the record that the 
Judge was appraised that the party intended to rely on his propositions advanced by way of 
exceptions, that is sufficient to constitute an exception, though there is no formal request to note it. 
Fox V. R. R., 4 S. C. 543; S. C. R. R. v. Wilmington R. R.; 7 S. C. 416; Clark v. Harper, 8 S. C. 
257; Coleman v. Heller, 13 S. C. 491; Godbold v. Vance, 14 S. C. 458. 

Under motion for new trial on the minutes, upon the ground of excessive damages, the 
Circuit Judge has power to order a new trial, unless the plaintiff enter a remittitur for a 
specified amount. Warren v. Lagrone, 12 g. 0. 45. 

Where the judge thought the evidence insufficient, but refused to grant new trial because 
he underrated his power to do so, under the Constitution, he committed error in law. Wood v. 
R. R. Co.. 19 S. C. 579. 

A Judee cannot grant such a new trittl at chambers. Charles v. Jacobs, 5 S. 0. 348; Clawson 
V. Hutchinson, 14 S. C. 520. And an order transferring the hearing to another Judge is of 
no effect. Donly v. Fort, 42 S. 0. 200, 20 S. E. 51. 

Where a case for appeal has not been settled or agreed on, it must be returned to 
Circuit for settlement. Chalk v. Patterson, 4 S. 0. 98. 

See, also, note to § 3053 in Civil Code. 

A new trial may be granted for inadequacy of damages. Bodie v. C. & W. C. R., 66 S. C. 
313, 44 S. E. 943. 

Entry of jnderraent on verdict on appeal to Circuit Court in condemnation proceedings. 
Mauldin v. Greenville, 64 S. C. 444, 42 S. E. 202. 



OF SOUTH CAROLINA 213 

Mistake in verdict as to parties corrected under direction of Judge. King v. Lane, 68 S. C. 
430, 47 S. E. 704. 

Decision on motion for new trial will only lie reviewed for abuse of discretion. Oil Co. v. 
Ice Co., 68 S. C. 47, 46 S. E. 720. 

(546) § 8. Motion for New Trial, or for Judgment on Special Ver- 
dict — Where to Be Heard. — A motion for a new trial on a case or excep- 
tions, or otherwise, and an application for judgment on a special verdict or 
case reserved for argument or further consideration, must, in the first 
instance, be heard and decided at the same term, except that when excep- 
tions are taken, the Judge trying the cause may, at the trial, direct them 
to be heard at some subsequent term, and the judgment in the meantime 
suspended ; and in that case they must be there heard in the first instance, 
and judgment there given. And when, upon a trial, the case presents only 
questions of law, the Judge may direct a verdict. 

Civ. Pro., '12, § 325; Civ. Pro., '02, § 287; 1870, XIV, § 289. 

"Same term" means the term at which the trial was had. Hinson v. Catoe, 10 S. C. 311. 

The Circuit Judge cannot hear a motion on the minutes for a new trial after the term has 
ended. Caston v. Brock, 14 S. C. 104; Molair v. R. Co., 31 S. C. 510, 10 S. E. 243. Where the 
motion is made and heard during the term, the decision may be tiled nunc pro tunc after the 
term is ended. Calhoun v. R. Co., 42 S. C. 132, 20 S. E. 30. This and § 545 relate only to 
motions for new trials iipon a ground arising- out of something that occurred at the trial. 
State V. David, 14 S. C. 428; Clawson v. Hutchinson, 14 S. C. 517; Sams v. Hoover, 33 S. C. 401. 
12 S. E. a. 

Referred to in Charles v. Jacobs, 5 S. C. 349; Caston v. Brock, 14 S. 0. 111. 

Equitable relief granted for mistake in verdict where this remedy in applicable. Pelzer Mfg. 
Co. V. Hamburg, etc., Ins. Co., 71 Fed. 826, 832. 



ARTICLE II. 

JURY COMMISSIONERS— DRAWING AND SUMMONING JURORS. 

(547) § 1. Jury Commissioners — Of Whom Constituted. — The 

County Auditor, the County Treasurer and the Clerk of the Court of Com- 
mon Pleas of each county in this State shall perform the duties herein- 
after set forth. 

Civ. '12, § 4016; Civ. 02, § 2909; G. S. 22.54; R. S. 2373; 1871, XIV, 690; 1874, XV, 
638; 1893, XXI, 524; 1896, XXII, 16; 1902, XXIII, 1066. 

A writ of venire without the seal of the Court is void, and is ground for arrest of judg- 
ment, state V. Dozier, 2 Speer; State v. Williams, 1 Rich. 188; State v. Stephens, 11 S. C. 319. 
No venire can issue for talesmen. State v. Williams, 2 Hill 381; State v. Stephens, 11 S. C. 319; 
State V Hill, 19 S. C. 435. Defect in such writ, if issued, is no ground for arrest of judgment. 
State 1), Hill. 19 S. C. 435; State v. Gilreath, 19 S. C. 603. Venire need not be signed 
by Attornev General or Solicitor. State v. Hill, 19 S. C. 435. If it anywhere appears in the writ 
that it is issued in the name of the State, that is sufficient compliance with Constitution. 76. 

The failure of Sheriff to endorse on the venire its entry in his office does not invalidate it. 
State V. Clayton, 11 Rich. 581. Where contrary does not appear the service will be presumed 
to be correct. State d. McGraw, 35 S. C. 283, 14 S. E. 630. 

The drawing is invalid, and it is good ground of challenge to the array, if the Jury 
Commissioner, who assisted, is a near blood relative to the deceased. State v. McQuaige, 5 S. C. 
429. Not so where the relationship was by marriage and remote. State v. McNinch, 12 S. 0.89. 
The absence of one of the Board of Jury Commissioners does not invalidate the drawing-. 
State V. Merriman, 35 S. C. 607, 14 S. E. 394; State v. Nelson, 80 S. C. 375. If jury 
illegally drawn judgment will be arrested. State v. Jenning-s, 15 Rich 42. 

State V. Stephens, 13 S. C. 285; State v. Clayburn, 16 S. C. 375; State v. Jackson, 32 S. C. 
27, 10 S. E. 769. 

See Criminal Statutes as to Grand Jurors. 

Immaterial irregularity in summoning the jury does not affect their legality. State v. 
Crosby, Harp. 91; State v. McElmurray, 3 Strob. 23; State v. JefEcoat, 26 S. 0. 114, 1 S. E. 
440. " Jurors summoned by an acting Deputy Sheriff and serving are lawful. State v. 
McGraw, 35 S. C. 283, 14 S. E. 630. 

Court will presume that Sheriff read the venire to juror. State v. Toland, 36 S. 0. 515, 15 S. E. 
599. Residence is place of abode. Ih. Sheriff may make return the day Court opens, but 
he must make it before the hour Court opens. It. Service by deputy good, although no 
endorsement in writing of his appointment upon the venire. Ih. Failure of Sheriff to serve a juror 
out of the County does not affect the array. State v. Derrick, 44 S. C. 344, 22 S. E. 337. In the 
absence of proof to the contrary it will be presumed that the venires were properly served. 
State V. McGraw, 35 S. C. 283, 14 S. E. 630. 

This drawing was properly made from such special apartment, when in the presence 
of the Court, the Board of Jury Commissioners took from the jury box the names of residents 
designated and then drew the required number; the law provided for such special apartment 



214 CODE OF CIVIL PROCEDURE 

not 'hnviTiiir passed at the time when the jury was originally drawn. State v. Cardozo, 11 S. C. 
195: State «. Smalls, 11 S. C. 262. It is not necessary for all the parties designated to 
draw such .inrovs to see the drawing of the names; it may be done by a majority of them. 
State V. White, 15 S. C. 331. The regular jurors must be exhausted before the drawing 
can be made. State v. Anderson, 26 S. C. 599, 2 S. E. 699. It does not vitiate such drawing 
that only 148 names were put m special apartment. State v. Merriman, 34 S. C. 16, 12 S. E. 619. 
No venire is necessary to summon the jurors so drawn as talesmen. State v. Williams, 2 Hill 381; 
State V. Stephens, 11 S. C. 319; State v. Hill, 19 S. C. 435; State v. Anderson, 26 S. C. 599, 
2 S. E. 699: State v. Merriman, 34 S. 0. 16, 12 S. E. 619. Although it may be done by venire. 
State V. Coleman, 8 S. C. 237. When the regular and special apartments of the jury box have both 
been exhausted, the deficiency should be supplied by issuing a venire for additional jurors as 
herein prescribed; the trial should not be postponed. State v. Briggs, 27 S. C. 80, 2 S. E. 854. 
There can be no challenge to array of jurors drawn to supply stich deficiency; each juror may be 
challenged for reason. State v. Merriman, 34 S. C. 16, 12 S. B. 619. 

State V. Powers. 59 S. C. 200, 37 S. E. 690; State v. Toland, 36 S. C. 515, 15 S. E. 599; 
State 1). AVashington, 82 S. C. 341, 64 S. E. 386; State v. Mills, 79 S. 0. 194; State v. 
Graham, 79 S. ' C. 118. 

Jury law held unconstitutional as special legislation. State v. Queen, 62 S. 0. 247, 40 S. E. 553. 

Act 24 Stat. 917, is not obnoxious to Const. § 17, Art. III. State v. Franklin, 80 S. C. 332, 60 
S. E. 953. 

Statutes prescribing' time and manner of drawing jurors are directory, and venire will not 
be Quashed for mere irregularities. State v. Smith, 77 S. C. 248, 251, 57 S. E. 868. 

Presence and assistance of sheriff in drawing do not vitiate it in absence of suggestion of 
prejudice to appellant. State v. Nelson, 80 S. C. 373, 61 S. E. 897. 

(548) § 2. Preparation of Jury List — Electors to Be Placed On — When 
Prepared — Proviso as to Newberry County. — The said County Auditor, 
County Treasurer, and the Clerk of Court of Common Pleas of each 
county shall, in the month of December of each year, prepare a list of 
such qualified electors, under the provisions of the Constitution, between 
the ages of twenty-one and sixty-five years, of good moral character, of 
their respective counties, as they may deem otherwise well qualified to 
serve as jurors, being persons of sound judgment and free from all legal 
exceptions, which list shall include not less than one from every three of 
such qualified electors under the provisions of the Constitution, between 
the ages of twenty-one and six<ty-five years, and of good moral character, 
to be selected without regard to whether such persons live within five 
miles or more than five miles from the Court House : Provided, That in 
the County of Newberry said list shall be prepared during the month of 
July. 

Civ. '12, § 4017; 1902, XXIII, 1066; 1915, XXIX, 76. 

State V. Mills, 79 S. C. 187, 193, 60 S. E. 664; State v. Graham, 79 S. C. 116, 60 S. E. 431. 

Held not error to lay aside certain names. State v. Cunningham, 87 S. C. 453, 69 S. E. 1093. 

This statute does not discriminate against individuals on account of race, color or previous 
condition. Franklin v. State, 218 U. S. 161, 169, 54 L. Ed. 980. 

Jiiry law of 1900, unconstitutional. State v. Queen, 62 S. C. 247, 40 S. E. 553. Jury list 
prepared by Supervisor, instead of Jury Commissioners, not fatal. Hutto v. So. Ry. Co., 75 S. C. 
295, 55 S. E. 445. See, also, Rhodes v. Ry., 68 S. C. 494, 47 S. E. 689. 

Irregularities in preparing list not fatal. Hutto v. So. Ry. Co., 75 S. C. 295, 55 S. E. 445; 
Rhodes v. Ry., 68 S. C. 494, 47 S. E. 689. 

Time of drawing or preparing list — directory only. State v. Smalls, 73 S. C. 516, 53 S. E. 
976; Hutto v. So. Ry., 75 S. C. 295, 55 S. E. 445. 

(549) § 3. Jury Box — How Prepared — How Secured and Kept — Tales 
Box to Be Prepared. — Of the list so prepared, the County Auditor, County 
Treasurer and Clerk of the Court of Common Pleas shall cause the names 
to be written, each one on a separate paper or ballot, so as to resemble each 
other as much as possible and so folded that the name written thereon 
shall not be visible on the outside, and shall place them, with the said list, 
in a strong and substantial box, without apertures or openings when closed 
(to be known as the "Jury Box") to be furnished to them by the County 
Supervisor of their county for that purpose, and of such size and shape as 
that, when such separate papers or ballots shall have been folded and 
placed therein as above required, they may be easily shaken up and about 
and well mixed therein, and it shall be the duty of the Clerk of the Court 



OF SOUTH CAROLINA 215 

to keep said jury box in his custody. The said jury box shall be kept se- 
curely locked with three separate and strong locks, each lock being differ- 
ent and distinct from the other two and requiring one key peculiar to itself 
in order to be unlocked and the key to one of said three locks shall be kept 
by the County Auditor himself, the key to another of said three locks by 
the County Treasurer himself, and the key to the third of said three locks 
by the Clerk of the Court of Common Pleas himself, so that no tv/o of them 
shall keep a similar key or similar keys to the same lock, and so that all three 
of them must be present together at the same time and place in order to 
lock or unlock and open the said jury box. At the same time they shall 
place in a special apartment in the said jury box (which special apartment 
shall be known as "the tales box") the names of not less than one hundred 
nor more than eight hundred of such of the persons whose names appear 
on said list as reside within five miles of the Court House, from which 
tales box shall be drawn jurors to supply deficiencies arising from any 
cause of emergency during the sitting of the Court. The names of per- 
sons placed in said tales box shall be also placed in the said jury box. 

Civ. '12, § 401S: 3902. XXIII, 1066; 1921, XXXII, 276. 

It is not fatal to venire, but an irregulaiity, tliat one key should open two locks, one being 
absent, but all members of the board should be present and participate in drawing a special 
venire. State v. Smith, 77 S. 0. 248, 57 S. E. 868. 

(550) § 4. Petit Jurors — How Drawn and Summoned. — Not less than 
ten nor more than twenty days before the first day of each week of any 
regular or special term of the Circuit Courts the said County Auditor and 
the County Treasurer, and the Clerk of the Court of Common Pleas shall 
proceed to draw thirty-six petit jurors to serve for such week only : Pro- 
vided, That it shall be the duty of the Jury Commissioners for Marlboro 
County to draw and issue a venire for a full -complement of thirty-six 
jurors to serve for each week provided by law for the holding of the Court 
of Common Pleas for said county: Provided, further, That whenever a 
jury shall be charged with a case, such jury shall not be discharged by 
reason of anything in this Section contained until a verdict shall be found 
or a mistrial ordered in such case. Immediately after such petit jurors 
are drawn, the Clerk of the Court of Common Pleas shall issue his writ 
of venire facias for such petit jurors, requiring their attendance on the 
first day of the week for which they have been drawn; and the said writ 
of venire facias shall be forthwith delivered to the Sheriff of the county. 

Civ. '12, § 4019 ; 1902, XXIII, 1066 ; 1916, XXIX, 820. 

Jurors summoned for General Sessions in Greenwood County under § 2930, Code 1903, ten days 
before holding of Court is sufficient. State v. Washing-ton, 82 S. C. 341, 64 S. E. 386. 

(551) § 5. Jurors to Be Publicly Drawn. — The said drawing shall 
be made openly and publicly in the of6.ce of the Clerk of the Court 
of Common Pleas, and the County Auditor, the County Treasurer and the 
Clerk of the Court of Common Pleas shall give ten days notice of each 
of said drawings by posting in a conspicuous place on the Court House 
door, or by advertisement in a county newspaper, a notice of the place, day 
and hour of such drawing. 

Civ. '12, § 4020; 1902, XXIII, 1066. 

Jury drawn within closed doors illegal. State v. Turner, 63 S. C. 548, 41 S. E. 778. 



216 CODE OF CIVIL PROCEDURE 

(552) § 6. Jurors Selected by Draft. — All jurors shall be selected by 
drawing ballots from the said jury box, and, subject to the exceptions 
herein before contained, the persons whose names are on the ballots so 
drawn shall be returned to serve as jurors. 

Civ. '12, § 4021; 1902, XXIII, 1066. 

(553) § 7. Disposition of Names Drawn. — The names of those who 
are drawn and actually serve as jurors shall be placed in an envelope, and 
shall not be put back into the said jury box until the first revision of the 
jury list herein provided for after they have been so drawn, to the end that 
no person shall serve as a juror more than once in one year. The same 
rule shall be observed as to drawing jurors from the said tales box: Pro- 
vided, That nothing herein contained shall be construed to be in conflict 
with the provisions of the law as to selecting by lot from the grand jury 
six members thereof to serve for the ensuing year. 

Civ. '12, § 4022; 1902, XXIII, 1066. 

(554) § 8. Venires May Issue in Term Time for Additional Jurors.— 

Nothing contained in this Article shall prevent the Clerk of the Court of 
Common Pleas from issuing venires for additional jurors in term time upon 
the order of the Court, whenever it is necessary for the convenient dis- 
patch of its business, in which case venires shall be served and returned, 
and jurors required to attend on such days as the Court shall direct. 
Civ. '12, § 4023; 1902, XXIII, 1066. 

(555) § 9. Draft From Tales Box. — In drawing jurors from the said 
tales box the same rules shall be observed as in drawing from said jury 
box, except that no notice of such, drawing shall be necessary. 

Civ. '12, § 4024 ; 1902, XXIII, 1066. 

(556) § 10. Number of Jurors to Be Drawn. — No more than thirty- 
six persons, to serve as petit jurors, shall be drawn and summoned to at- 
tend at one and the same time at any Court, unless the Court shall so 
order. 

Civ. '12, § 4025; 1902, XXIII, 1066. 

(557) § 11. Sheriff to Summons Jurors — When. — The grand and 
petit jurors drawn, as hereinbefore prescribed from the said jury box, shall 
be summoned by the Sheriff as provided by law, at least four days before 
the time fixed in the venire for them to attend the sitting of the Court : 
Provided, That in the County of Cherokee and in the Counties of Union 
and Spartanburg the Sheriff may summon all grand and petit jurors by 
sending by registered mail with request for a return card a summons di- 
rected to such juror, and also a card for written acceptance by such juror, 
to be signed and returned to the Sheriff. The Sheriff shall prepay all post- 
age and keep an account of such as actual expenses, for which he shall be 
reimbursed by the County Board of Commissioners in the manner provided 
by law. 

Civ. '12, § 4026; 1902, XXIII, 1066; 1913, XXVII, 26. 



OF SOUTH CAROLINA 217 

(558) § 12. Deficiency in Jurors — How Supplied. — Whenever it shall 
be necessary to supply any deficiencies in tlie number of grand or petit 
jurors duly drawn, whether caused by challenge or otherwise, it shall be 
the duty of the County Auditor, the County Treasurer and the Clerk of 
the Court of Common Pleas under the direction of the Court, to draw 
from the said tales box such number of fit and competent persons to serve 
as jurors as the Court shall deem necessary to fill such deficiency. 

Civ. '12, § 4027; 1902, XXIII, 1066. 

(559) § 13. Special Jury Lists in Certain Cases. — Whenever the jury 
list of any county shall be destroyed by fire or other casualty, or whenever 
it shall be held by any Court of competent jurisdiction that the jury list 
of any county has been unlawfully prepared, or is irregular or illegal, so 
as to render void the drawing of jurors therefrom, it shall be the duty of 
the County Auditor, the County Treasurer, and the Clerk of the Court of 
Common Pleas of each county to prepare a special jury list for the said 
county forthwith in the manner herein prescribed, from which special list 
grand and petit jurors shall be drawn for the Courts of General Sessions 
and Common Pleas for said county until the annual jury list shall have 
been prepared for such county as herein provided. 

Civ. '12, § 4028 ; 1902, XXIII, 1066. 

(560) § 14. Duty of Circuit Judge in Case of Irregularities. — When 
at any time it shall be determined by the resident Circuit Judge of 
any Circuit upon complaint made to him, that an irregularity has 
occurred in the drawing of the juries for any Circuit Court within 
his Circuit, or that any act has been done whereby the validity of any 
juries drawn or to be drawn may be questioned, it shall be lawful for 
such Circuit Judge to issue his order to the County Auditor, the County 
Treasurer, and the Clerk of the Court of Common Pleas for each county 
for which said Circuit Court shall be held at least five days before the sit- 
ting thereof, to proceed to draw jurors for such term, or take such meas- 
ures as may be necessary to correct such error. 

Civ. '12, § 4029 ; 1902, XXIII, 1066. 

(561) § 14a. Special Juries in Certain Cases. — Whenever at any term 
of the Circuit Court the array of grand and petit jurors summoned to 
attend is held to have been irregularly or illegally drawn or summoned, the 
Presiding Judge shall forthwith order, in either case, that the Jury Com- 
missioners of the county shall immediately prepare a special list and, in 
open Court, draw a special venire of grand or petit jurors, or draw such 
special jury from the last list, prepared according to law, which special 
grand or petit jury so drawn and summoned shall serve instead of those 
discharged at such term. 

1912, XXVII, 772. 

(562) § 15. Vacancy in Jury Commissioners — How Filled. — In case 
there shall be a vacancy in the office of the Clerk of the Court of Com- 
mon Pleas, County Auditor, or County Treasurer, at the time herein fixed 
for preparing said jury list, or for drawing a jury, or any one of said 



218 CODE OF CIVIL PROCEDURE 

officers shall be disqualified or unable to serve for any cause, the County 
Superintendent of Education shall act in his place and stead, and in case 
there shall be a vacancy in two of said offices, or for any other cause, twoi 
of said officers shall be unable to serve, the County Superintendent of 
Education and the Sheriff of such county shall act in their places and 
stead. 

Civ. '12, § 4030; 1902, XXIII, 1066. 

State V. Smith, 77 S. C. 248, 57 S. E. 868. Sheriff assisting in drawing. State v. 
Nelson, 80 S. C. 373, 61 S. E. 897. 

If any of the Commissioners are absent the County Superintendent of Education shall act 
in his place. State c. Smith, 77 S. C. 248, 57 S. E. 868. Number of keys same. lb. 

(563) § 16. List of Juries When Jury Commissioners Fail to Prepare 
liist. — "When the Jury Commissioners in any County in this State shall 
have heretofore omitted or shall hereafter omit to prepare the list of jurors 
for the then ensuing year, or to prepare the ballots of the names and place 
them in the boxes, at the time and in the manner required in this Act, the 
Chief Justice, any Associate Justice of the Supreme Court or any Circuit 
Judge shall have the authority and is required to grant an order on the 
application of any Solicitor or attorney at law, showing such omission by 
affidavit, which may be on information and belief, requiring the Jury 
Commissioners in question, within ten days after such order, to prepare 
said lists and ballots of names and to prepare the jury boxes {nunc pro 
tunc), and all juries drawn from said boxes shall be as valid and lawful 
as if the said omission had not occurred. 

Civ. '12, § 4031 ; 1905, XXIV, 917. 

(564) § 17. Jury Commissioners to Serve Without Compensation. — 

The said County Auditor, County Treasurer and Clerk of the Court of 
Common Pleas and General Sessions shall perform the duties required of 
them as Jury Commissioners without compensation. 

Civ. '12, § 4032 ; Civ. '02, § 2910 ; G. S. 2285 ; R. S. 2374 ; 1893, XXI, 524. 

(565) § 18. Term of Jurors. — Whenever the term of the Court of 
General Sessions and Common Pleas in the Counties of Edgefield, Barn- 
well, Marion, Marlboro, Cherokee, Aiken, Richland, Orangeburg, York, 
Greenville, Colleton, Chester, Darlington, Florence and Union shall be for 
two or more weeks, no petit juror shall be required to serve more than one 
week at any term of said Courts : Provided, That in the Counties of Marl- 
boro and Marion an extra venire shall be drawn for the Spring Term of each 
alternate year only, beginning with the year 1899 in Marlboro County and 
in the year 1900 in Marion; the Clerks of the said counties shall receive 
no extra compensation for issuing such venire, and the Sheriffs of said 
counties shall receive no compensation for serving same, except mileage 
shall be allowed. Thirty-six jurors shall be drawn in the manner pro- 
vided by law to serve for the first week, and a like number shall be drawn 
for each subsequent week of each term of said Courts; but whenever a 
jury shall be charged with a case, such jury shall not be discharged by 
reason of anything in this Section contained until a verdict shall have been 
found or a mistrial ordered in such case : Provided, That the thirty-six 
jurors drawn in the County of York for the second week, and in the County 
of Barnwell for the second week of each Winter Term, and in the County 



OF SOUTH CAROLINA 219 

of Aiken for the second week of each Spring Term of said Courts, and in 
the Counties of Darlington and Florence for the second week of each Fall 
Term of said Courts, and for the Counties of Marion and Marlboro for 
the second week of each term of said Courts, may be held over after the 
expiration of the time for which they were drawn, and until the business 
of the Sessions docket and the business on Calendar One (1) of the Court 
of Common Pleas for these counties shall be disposed of. Separate writs 
of venire shall issue for the jurors drawn to serve for each week of said 
terms of Court, except as provided in Section 550 for the drawing and 
issuance of a venire for a full complement of thirty-six jurors to serve 
for each week provided by law for the holding of the Court of Common 
Pleas for Marlboro Countj^ 

Civ. '12. § 4033; Civ. 'A2, § 2927; G. S- 2258; R. S. 2401; 1901, XXIII, 631; 1906. 
XXV, 109; 1916, XXIX, 820. 

(566) § 19. Grand Jury May Employ Expert Accountant. — Grand 

juries may, whenever in their judgment it becomes necessary, employ one 
or more expert accountants to aid them to examine and investigate the 
offices, books, papers, vouchers and accounts of any public officer of their 
respective counties, and to fix the amount of compensation or per diem 
to be paid therefor, upon the approval of the presiding or Circuit Judge, 
given before any expert is employed. 
Civ. '12, § 4034; 1909, XXVI. 121. 



ARTICLE III. 

QUALIFICATION, EXEMPTION, EMPANELING AND PAY OF 

JURORS. 

(567) § 1. County Officers and Court Employees Disqualified.— 

No Clerk, Constable, or Deputy of the Clerk of the Court, Sheriff, Probate 
Judge, County Commissioners, Magistrates, or other county officer, or any 
employee within the walls of any Court House, shall be eligible as a jury- 
man in any civil or criminal case. 

Civ. '12, § 4035 ; Civ. '02, § 2933 ; R. S. 2378 ; 1889, XX, 69 ; 1890, XX, 725. 

As to qualifications of jurors are prescribed bv § 22, Art. V, of Constitution of 1895, 
superseding G. S. 2239; R. S. 23'? 7. 

Magistrate disqualified from acting as juror in case in which he has acted. State v. 
Graham, 79 S. C. 116, 60 S. E. 431. 

(568) § 2. Persons G-uilty of Crime Not to Be Drawn. — If any person 
whose name is placed in the jury box is convicted of any scandalous crime, 
or is guilty of any gross immorality, his name shall be withdrawn there- 
from by the Board of Jury Commissioners, and he shall not be returned 
as a juror. 

Civ. '12, § 4036 ; Civ. '02, § 2934 ; G. S. 2242 ; R. S. 2379 ; 1871, XIV, 691. 

One convicted of larceny, though prior to the Constitution of 1895, is disqualified. Garrett v. 
Wineberg, .54 S. C. 127. 31 S. E. 341. 

(569) § 3. Persons Exempt From Serving as Jurors. — The following 
persons shall be exempt from serving as jurors, to wit: The Governor, 
Lieutenant Governor, Attorney General, Comptroller General, State Treas- 



220 CODE OF CIVIL PROCEDURE 

urer, Secretary of State, Superintendent of Education, members and offi- 
cers of the Senate and House of Representatives during the sessions of the 
General Assembly, members of the Senate and House of Representatives 
of the United States, Judges and Justices of any Court, members of the 
State Board of Examiners appointed by the Governor, members of the 
County Board of Examiners appointed by the State Board of Examiners, 
County Commissioners, County Auditors and Treasurers, Clerks of Courts, 
Registers of Mesne Conveyances, Sheriffs and their Deputies, Coroners, 
Constables, the Marshals of the United States and their deputies, and all 
other officers of the United States, counsellors and attorneys at law, or- 
dained ministers of the gospel, officers of colleges, preceptors and teachers 
of academies, practicing physicians and surgeons, regularly licensed den- 
tists authorized by law to practice dentistry, licensed pharmacists, apothe- 
caries or druggists who carry on and conduct the business of such occupa- 
tion, cashiers and tellers of incorporated banks, editors and printers of 
newspapers, constant ferrymen, millers actually engaged at the time in 
grinding grain for the public, and all men actually employed as such, per- 
sons who are more than sixty-five years old, and the following officers and 
employees of railroads: The chief engineer, assistant engineers, commis- 
sioner or superintending officer, secretary and auditor, or treasurer or 
directors, keepers of depositories, guards stationed on road to protect it 
from injury, not exceeding one man to every five miles, and such persons 
as may be actually employed in working locomotive engines, traveling with 
cars for the purpose of attending to the transportation of passengers and 
goods, not exceeding one engineer and assistant to each steam engine, and 
one person to each passenger car and to every five cars for transporting 
goods, while such persons are actually employed, and telegraph operators, 
and all officers and members of the fire department of Charleston, and all 
the officers and active members of the fire department of any city or 
town of ten thousand or more inhabitants, the superintending officer or 
agent of steamship lines, the keepers of steamship freight depots, and 
licensed pilots while actually employed, and all marine engineers and their 
assistants, and all town and city treasurers and their assistants and 
licensed embalmers, and all employees of the railway mail service, and 
female electors. 

Civ. '12, § 4037; Civ. '02, § 293.5; G. S. 2240; R. S. 2380; 1832, VIII, 380; 18.S6; 
VIII, 447 ; 1871, XIV, 690 ; 1878, XIV, 582 ; 1880, XVII, 307 ; 1884, XVIII, 713 ; 1891, 
XX, 1124; 1896, Xx'll, 19; 1899, XXIII, 44; 1902, XXIII, 1028; 1907, XXV, 492, 

1921, XXXII, 269 ; 1921, XXXII, 278. 

Such exemption is a personal privilege, does not disqualify the juror, and is no ground of 
objection to him. State v. Merriman, 35 S. 0. 607, 14 S. E. 394; State v. Toland, 36 S. C. 
515, 15 S. E. 599. 

Rural free delivery mail- carriers are not disqualified from serving on grand jury. State v. 
Graham, 79 S. C. 116, 60 S. E. 431. 

(570) § 4. No Persons Liable to Be Drawn More Than Once Each 
Year — Proviso. — No person shall be liable to be drawn and serve as a 
juror in any Court oftener than once in every year, but he shall not be so 
exempt unless he actually attends and serves as a juror in pursuance of 
draft; nor shall he be exempt from serving on a jury in any other 
Court in consequence of his having served before a Magistrate. 

Civ. '12, § 4038; Civ. '02, § 2936; G. S. 2241; R. S. 2381; 1879, XVI, 307. 



OF SOUTH CAROLINA 221 

(571) § 5. No Juror to Be Excused Except for Cause. — No juror 
who has been drawn to serve at any term of the Court shall be excused 
except for good and sufficient cause, upon affidavits, which together with 
his application, shall be filed in the office of the Clerk of the Court, and. 
remain on record. 

Civ. '12, § 4039; Civ. '02, § 2937; R. S. 2382; 1871, XIV, 690. 

(572) § 6. Compensation — Per Diem and Mileage — Computation of 
Mileage. — Jurors shall receive per day three dollars, besides mileage at 
the rate of five cents per mile going to and returning from Court. Jurors 
in Magistrate Courts shall receive fifty cents for each civil case tried and 
mileage as allowed other jurors. Whenever provision is made by law for 
the payment of mileage of jurors, witnesses and other persons required to 
attend Court, or to travel to perform any legal duty, said mileage shall 
be computed and paid for by the shortest practical route to be trav- 
eled over any regular established highway. 

Civ. '12, § 4040; Civ. '02, § 2938; G. S. 2269; R. S. 2384; 1874, XV, 60S; 1878. XVI, 
630; 1907, XXV, 518; 1911, XXVII, 86; 1920, XXXI, 735. 

(573) § 7. Jury for Court of Common Pleas to Receive One Dollar in 
Each Case Tried. — The jury in each case tried in the Court of Common 
Pleas shall receive one dollar from the party in whose favor the verdict is 
rendered, to be taxed with the costs of the action. 

Civ. '12, § 4041 ; Civ. '02, § 2939 ; G. S.. 2270 ; R. S. 2384 ; 1791, V, 154. 

(574) § 8. Empaneling Jurors in Court of Common Pleas. — In the 
trial of all actions at law in the Courts of Common Pleas, and issues or- 
dered to be framed by the Judge in equity cases in said Courts, it shall be 
the duty of the Clerk to furnish the parties, or their attorneys, with a 
list of twenty of the jurors to be drawn and selected by ballot from the 
whole number of jurors who are in attendance, the names on said lists to be 
numbered from one to twenty, and be stricken off by numbers in the same 
manner as the regular panels of jurors in said Courts have been heretofore 
formed, from which said list the parties, or their attorneys, shall alter- 
nately strike, until there shall be but twelve left, which shall consti- 
tute the jury to try the case or issue. In all cases the plaintiff shall have 
the first strike, and, in all civil cases hereafter tried in the Courts of Com- 
mon Pleas of this State, any party shall have the right to demand a panel 
of twenty competent and impartial jurors from which to strike a jury. 
"When the list aforesaid is prepared by the Clerk and presented to the 
parties, or their attorneys, objection for cause must be made before strik- 
ing, and, if any objections are sustained, the Clerk must fill up the list 
before the same is stricken : Provided, That after the jury has been struck, 
as herein provided, if it be discovered that any one or more of the jurors 
whose names remain upon the jury list are disqualified for any cause, the 
Clerk shall furnish the parties, or their attorneys, with an additional list 
of three times as many jurors as may be found to be disqualified, to be 
drawn as the first list was drawn, from which the parties, or their attor- 
neys shall alternately strike, until there shall be left the number necessary 
to empanel the panel. Should the jury, charged with any case, be delayed 



222 CODE OF CIVIL PROCEDURE 

in rendering their verdict, so that they could not be present to be drawn 
from in making the list to form a second jury, then the Clerk shall present 
to the parties, or their attorneys, a list containing the names of twenty 
jurors to be drawn by the Clerk from the remaining jurors in the same 
manner as provided in this Section, from which list the parties, or their 
attorneys, shall alternately strike, as hereinbefore provided, until twelve 
are left, which shall constitute the jury. In all cases of default, where it 
may be necessary to have the verdict of a jury, or in the trial of 
cases when the parties, or their attorneys, shall waive the right to strike 
a jury, the Clerk shall, under the direction of the Judge, draw and em- 
panel a jury, who shall pass upon such matters as may be submitted to 
them in default cases, or the trial of such cases, when the parties have 
waived the right to strike the jury, as stated in this Section. 

Civ. '12, § 4042; Civ. '02, § 2940; 1901, XXIII, 633; 1902, XXIII, 1069, 1904, XXIV, 
413; 1909, XXVI, 48. 

Senterfeit v. Shealey, 71 S. C. 259, 51 S. E. 142. 

(575) § 9. How Foreman of Jury Selected. — The forman of each 
jury, after being thus empaneled, may be appointed by the Court, or the 
jury may retire and choose their foreman. 

Civ. '12, § 4043 ; Civ. '02, § 2941 ; G. S. 2253 ; R. S. 2396 ; 1905, XXIV, 846 

(576) § 10. When Petit Jurors May Be Discharged. — All jurors sum- 
moned to serve at any term of the Courts of General Sessions or Common 
Pleas may be held beyond the period for which they were summoned until 
all cases in both of said Courts to be tried by jury are disposed of, or until 
another jury shall have been empaneled to try such cases : Provided, That 
nothing contained in this Section shall apply to Courts of General Ses- 
sions and Common Pleas for York County. 

Civ. '12, § 4044 ; Civ. '02, § 2942 ; 1896, XXII, 18. 



ARTICLE IV. 

OBJECTION TO JURORS— VERDICT. 

(577) § 1. Jurors May Be Examined by Court— If Not Indif- 
ferent, Shall Be Set Aside. — The Court shall, on motion of either party 
in the suit, examine, on oath, any person who is called as a juror therein, to 
know whether he is related to either party, or has any interest in the cause, 
or has expressed or formed any opinion, or is sensible of any bias or prej- 
udice therein, and the party objecting to the juror may introduce any 
other competent evidence in support of the objection. If it appears to the 
Court that the juror is not indifferent in the cause, he shall be placed aside 
as to the trial of that cause, and another shall be called. 

Civ. '12, § 4045 ; Civ. '02, § 2944 ; G. S. 2261 ; R. S. 2403 ; 1797, V, 358. 

Ob.iection on account of relationship to parties litigant within sixth degree. Sims v. 
Jones, 43 S. C. 91, 20 S. E. 905: State v. Murphy, 48 S. C. 1, 25 S. E. 43; State v. Brock, 
61 S. C. 141. 39 S. E. 359; State v. Merriman, 34 S. C. 16, 12 S. E. 619. Objection on account of 
disqualification, burden of proof. State v. Weaver, 58 S. C. 106, 36 S. E. 499. Judge determines 
what auestion to ask. State v. Nance. 25 S. C. 168. May be rejected because of formation of 
opinion before hearing. Sims v. Jones, 43 S. C. 91, 20 S. E. 905. When such objection 
is insufficient. State v. Summers, 36 S. C. 479, 15 S. E. 369; State v. James, 34 S. C. 579. 1? 
S. E. 325, 34 S. C. 49, 12 S. E. 657. Surety on recognizance rejected. State v. Prater, 



OF SOUTH CAKOLINA 223 

26 S C 198, 613, 2 S. E. 108. Opposition to capital punishment. State v. James, supra; State 
V. Mcintosh, 39 S. C. 97, 17 S. E. 446. 

Jurors should be held disqualified by relationship within the sixth degree to parties litigant. 
State V. Brock 61 S. C. 141, 39 S. E. 359. 

Juror is disqualified where he is second cousin by marriage, that being related within the 
sixth degree. State v. Byrd, 72 S. C. 104, 51 S. E. 542. 

Second cousins are related within sixth degree. Clinton v. Leake, 71 S. C. 22, 50 S. E. 541; 
State 1!. Byrd. 72 S. C. 104, 51 S. E. 542. Examination of witness to contradict juror on 
voire dire. State v. Johnson, 74 S. C. 401, 54 S. E. 601. Juror on former trial; waiver 
by failure to ob.iect. State v. Langford, 74 S. C. 460, 55 S. E. 120. See 80 S. C. 46. 

Objection to grand juror on account of relationship. State v. Perry, 73 S. C. 199, 53 S. E. 
169. 

Terms are mandatory. Robinson v. Howell, 66 S. C. 326, 44 S. E. 931; Senterfeit. v. 
Shearlej', 71 S. C. 259, 51 S. E. 142; State v. Henderson, 73 S. C. 201, 53 S. E. 170. Party 
objecting on ground of relationship m\ist use diligence to ascertain relationship before trial. 
Blassingame v. Laurens, 80 S. C. 38. 61 S. E. 96. 

Whether juror is indifferent is exclusively for Circuit Judge, except when his conclusion is 
wholly without evidence to support it. Jurors held competent by trial Judge, who said that 
it would require evidence bv the defendant to remove their impressions, although not sensible 
of any bias. State v. Williamson, 65 S. C. 242, 43 S. E. 671. 

(578) § 2. In Penal Actions, Liability to Pay Taxes No Objection. — 

In indictments and penal actions for the recovery of a sum of money, or 
other thing forfeited, it shall not be a cause of challenge to a juror that he 
is liable to pay taxes in any county, city or town which may be benefited 
by such recovery. 

Civ. '12, § 404G ; Civ. '02, § 2945 ; G. S. 2264 ; R. S. 2405 ; 1871, XIV, 693. 

(579) § 3. When Objections to Jurors Must Be Made. — All objections 
to jurors called to try prosecutions, or actions, or issues, or questions aris- 
ing out of actions or special proceedings in the various Courts of this State, 
if not made before the juror is empaneled for or charged with the trial of 
such prosecution, or action, or issue, or question arising out of actions or 
special proceedings, shall be deemed waived; and if made thereafter shall 
be of none effect. 

Civ. '12, § 4047; Civ. '02, § 2946; G. S. 2265; R. S. 2406; 1871, XIV, 693; 1899, 
XXIII, 39. 

State V. Quarrel, 2 Bav 150; Pearson v. Wightman, 1 Mill 336; State v. Fisher, 2 N. & McC. 
261; State v. Billis, 2 McC. 12; State v. Slock, 1 Bail. 330; State v. Williams, 2 Hill 381; 
State V. Blackledge, 7 Rich. 327; State v. Stephens, 11 S. C. 319; State v. Gill, 14 S. C. 410; 
State V. Clyburn, 16 S. C. 375; Todd v. Gray, 16 S. C. 635; State v. Anderson, 26, S. C. 
599, 2 S. E. 699. The Court will not grant such leave unless it appears that the party has 
been prejudiced by such omission. State v. Stephens, 11 S. C. 319; State v. Gill, 14 S. C. 
410. ~ Where party objects to juror and the Court overrules the objection and the party 
completes his jury without exhaiisting his right of challenge, the error of the Court, if anr, 
is cured. State v. Price. 10 Rich. 356; State r. McQuaige, 5 S. C. 431; State v. Gill, 14 S. C. 
412; State v. Dodson, 16 S. C. 460; State v. Anderson, 26 S. 0. 599, 2 S. E. 699. Does 
not apply to grand .jurors. State v. Boyd, 56 S. C. 382, 34 S. E. 661. Where objection was not 
known before trial, it may be made after verdict. Garrett v. Weinberg, 54 S. C. 127, 31 S. E. 341'. 

Objections that venire was not under seal. State v. Lazarus, 83 S. C. 215, 65 _S. E. 270. 

Nev; trial should not be granted because juror sat en former trial at which defendant 
was convicted on ground that neither defendant nor his counsel knew fact. State v. Langford, 
74 S. C. 460. 55 S. E. 120. 

When a juror, upon being asked if he is related to either party, says he does not know 
of any relationship, and after verdict, on motion for new trial, losing party shows that he is 
related, his relationship could not have affected him, and where due diligence is not shown before 
trial in ascertaining relationship, verdict will not be set aside. Senterfeit v. Shealey, 71 
S. C. 259, 51 S. E. 142. 

Objection that venire was not under seal must be made or noticed before trial. State v. 
Lazarus, 83 S. C. 215. 65 S. E. 270. 

(580) § 4. Irregularity in Venire Drawing, Etc., Not to Affect Ver- 
dict, Except in Certain Cases. — No irregularity in any writ of venire 
facias, or in the drawing, summoning, returning or empaneling of jurors, 
shall be sufficient to set aside the verdict, unless the party making the ob- 
jection was injured by the irregularity, or unless the objection was made 
before the returning of the verdict. 

Civ. '12, § 4048 ; Civ. '02, § 2947 ; G. S. 2266 ; R. S. 2407 ; 1797, V, 358. 

But if such defects appear upon the record, they may be considered on motion in arrest 
of judgment. State v. Stephens, 11 S. C. 319. This Section applies to grand jurors as well 
as petit. State v. Blackledge, 7 Rich. 327; State v.- Jeffcoat, 26 S. C. 114, 1 S. E. 440. 



224 CODE OF CIVIL PROCEDURE 

state V. Johnson, 66 S. C. 31, 44 S. E. 58; State v. Edwards, 68 S. C. 318, 47 S. E. 395; 
State V. Smalls, 73 S. C. 516, 53 S. E. 976; State v. Lazarus, 83 S. C. 215, 65 S. E. 270; 
State V. Washington, 82 S. C. 341, 64 S. E. 386; State v. Benton, 85 S. C. 107, 67 S. E. 143. 

Indictment found by grand jury drawn under unconstitutional statute is void, and defendant 
does not waive his right by pleading to indictment. State v. Edwards, 68 S. C. 318, 47 S. E. 395. 

(581) § 5. Verdict May Be Set Aside on Gratuity Given to Juror by 
Party. — If either party in a case in which a verdict is returned .during the 
same term of the Court, before the trial, gives to any of the jurors who 
try the cause anything by way of treat or gratuity, the Court may, on 
the motion of the adverse party, set aside the verdict and award a new 
trial of the cause. 

Civ. '12, § 4Q49 ; Civ. '02, § 2948 ; G. S. 2267 ; R. S. 2408 ; 1797, V, 358. 

Misconduct — Agent of defendant treating- juror. McGill v. S. A. L. Ry., 75 S. C. 177, 
5t S. E. 216. 

(582) § 6. Jury Failing to Agree, Course to Be Pursued. — When a 
jury, after due and thorough deliberation upon any cause, return into 
Court without having agreed upon a verdict, the Court may state anew 
the evidence, or any part of it, and explain to them anew the law applicable 
to the case, and may send them out for further deliberation ; but if they 
return a second time without having agreed upon a verdict, they shall 
not be sent out again without their own consent unless they shall ask from 
the Court some further explanation of the law. 

Civ. '12, § 4050 ; Civ. '02, § 2949 ; G. S. 2268 ; R. S. 2409 ; 1797, V, 358. 

Upon request coming from jury therefor. Judge may state only a part of the testimony; he 
di I not err in refusing defendant's I'equest to have it all read. State v. Haines, 36 S. 0. 505, 
If S. E. 555. Discretion of Court to send back to room or discharge. State v. Stephenson, 
5< S. C. 234, 32 S. E. 305. Unwarranted detention. State v. Kelley, 46 S. C. 55, 24 S. E. 60. 

Distinguished. State v. Rowell, 76 S. 0. 494, 56 S. E. 23. 

Separation of jurors during trial. State v. Williams, 76 S. C. 135, 56 S. E. 783; State v. 
R well, 75 S. 0. 494, 56 S. E. 23; McGill v. S. A. L. Ry., 75 S. C. 177, 55 S. E. 216. 



ARTICLE V. 

MISCELLANEOUS PROVISIONS. 

(583) § 1. Jury May View Place, Property or Thing in Ques- 
tion — Proviso. — The jury in any case may, at the request of either party, 
be taken to view the place or premises in question, or any property, mat- 
ter, or thing, relating to the controversy between the parties, when it ap- 
pears to the Court that such view is necessary to a just decision: Pro- 
vided, The party making the motion advances a sum sufficient to pay the 
actual expenses of the jury and the officers who attend them in taking 
the view, which expenses shall be afterwards taxed like other legal costs, 
if the party who advanced them prevails in the suit. 

Civ. '12, § 4051; Civ. '02, § 2950; G. 1^. 2271; R. S. 2410; 1871; XIV, 693. 

Rogers v. Hodge, 83 S. C. 569, 571, 65 S. E. 819, 18 Ann. & Bug. Cas. 729. 
No provisions for Judge lo view premises. Parrott v. Barrett, 81 S. C. 255, 62 S. E. 241; 
McCarley v. Glenn-Lowry Mfg. Co., 75 S. C. 390, 56 S. E. 1. 

(584) § 2. Penalty for Non-Attendance. — If a person duly drawn and 
summoned to attend as a juror in any Court neglects to attend, without 
sufficient excuse, he shall pay a fine not exceeding twenty doll^ars, which 
shall be imposed by the Court to which the juror was summoned, and shall 
be paid into the County Treasury. 

Civ. '12, § 4052 ; Civ. '02, § 2951 ; G. S. 2272 : R. S. 2411 ; 1871, XIV, 694. 



OF SOUTH CAROLINA 225 

(585) § 3. Penalty for Neglect of Duty in Drawing Jurors. — When, 
by neglect of any of the duties required by this Chapter to be performed 
by any of the officers or persons herein mentioned, the jurors to be re- 
turned from any place are not duly drawn and summoned to attend the 
Court, every person guilty of such neglect shall pay a fine not exceeding 
one hundred dollars, to be imposed by the same Court, to the use of the 
county in which the offense was committed. 

Civ. '12, § 4053 ; Civ. '02, § 2952 ; G. S. 2273 ; R. S. 2412 ; 1871, XIV, 694. 

(586) § 4. Power and Duty of Coroners, Clerks or Magistrates, to 
Summon Jurors. — Nothing contained in this Chapter shall affect the 
power and duty of Coroners, Clerks, or Magistrates, to summon and em- 
panel jurors, when authorized by other provisions of law. 

Civ. '12, § 4054 ; Civ. '02, § 2953 ; G. S. 2274 ; R. S. 2413 ; 1871, XIV, G93. 

(587) § 5. Feeding of Juries to Be Paid by County. — Whenever any 
Circuit Judge shall order food to be furnished by the Sheriff to any jury 
charged with the consideration of a case, the expenses connected there- 
with shall be paid by the County Commissioners of the county in which 
such case is being tried, upon presentation of the bill of the Sheriff, cer- 
tified as correct by the Presiding Judge. 

Civ. '12, § 4055 ; Civ. '02, § 2954 ; R. S. 2414 ; 1891, XX, 1053. 



CHAPTER IV. 

Trial by the Court. 

(588) § 1. Trial by Jury — How Waived. — Trial by jury in the 
Court of Common Pleas may be waived by the several parties to an issue 
of fact in actions on contract, and with the assent of the Court in other 
actions, in the manner following : 

1. By failing to appear at the trial. 

2. By written consent, in person, or by attorney, filed with the Clerk. 

3. By oral consent in open Court, entered in the minutes. 
Civ. Pro.. '12, § 326; Civ. Pro., '02, § 288; 1870, XIV, § 290. 

This Section in the terms "actions on contract" includes such actions as before its adoption 
were recognized as actions at common law. State v. R. B., 8 S. C. 129. 

Party may waive ri^ht to jury trial, by consenting to reference of such issues in the 
cause. City Council v. Ryan, 22 S. C. 339; Meetze v. R. R., 23 S. C. 1; Martin v. Martin, 24 S. C. 
446: Calvert v. Nickles, 26 S. C. 304, 2 S. E. 116: Archer v. Ellison, 28 S. C. 238, 5 S. E. 
713; Rhodes v. Russell, 32 S. C. 585, 10 S. E. 828. Or by consenting to trial by the Court. 
Whalev v. Charleston, 5 S. C. 206; Magruder v. Clayton, 29 S. C. 407, 7 S. E. 844; Griffith v. 
Cromley, 58 S. C. 448. 36 S. E. 738. 

But a party cannot so waive such right by his conduct. Sale v. Meggett, 25 S. C. 72. 

Where the Judge in an action on contract withdrew the trial of the issue of facts from the 
.iury without the consent of the several parties, the party requesting the Judge so to do 
cannot complain on appeal that it was error. Stepp v. Association, 37 S. C. 417, 16 S. E. 134. 

In view of the Constitution, Art. 1 Section 25, Art. 5, Section 5, 15 and 22, Art. 6 Section 6 and 
Sections 991-3947 of Vol. 3 Code 1922, and Sections 533 and this Section of this Volume, 
held that a claim for damages for lynching presented to the County Board of Commissioners 
which was refused was not a bar to an action brought in the Court of Common Pleas, where 
it was evidently intended it should be brought, under the Constitution and statutes of the 
State: the County Board having no jurisdiction in such cases. Best by Barnwell County, 
114 S. C. 123, 103 S. E. 479. 

(589) § 2. On Trial by Court — Judgment — How Given — Motion for 
New Trial. — Upon the trial of a question of fact by the Court, its decision 
shall be given in writing, and shall contain a statement of the facts found, 

10 C C P 



226 CODE OF CIVIL PROCEDURE 

and the conclusions of law, separately ; and upon a trial of an issue of law, 
the decision shall be made in the same manner, stating the conclusions of 
law. Such decision shall be filed with the Clerk within sixty days after the 
Court at which the trial took place. Judgment upon the decision shall be 
entered accordingly. 

Civ. Pro., '12, § 327; Civ. Pro., '02, § 289; 1870, XIV, § 291. 

The demand as to the form of the decision should be complied with. Visanska ■;;. Bradley, 
4 S. C. 288. 

But where there is no contest as to the facts, there need be no finding of fact. Briggs v. 
Winsmith, 10 S. 0. 133. 

The rule is directory and not mandatory, and an omission on the part of the Court to 
contain in its decision a statement of the facts found and the conclusions of law separately, 
is not ground for reversal unless it appear that appellant has suffered prejudice thereby, 
as to the merits of the case. Joplin v. Carrier, 11 S. C. 329; State v. Columbia, 12 S. C. 393; 
Bouknight v. Brown, 16 S. C. 166; Briggs v. Briggs, 24 S. C. 377; May v. Cavender, 29 S. C. 
598. 7 S. E. 489; Stepp v. Assn., 37 S. C. 417 16 S. E. 134; Harrell v. Kea, 37 S. C. 369, 16 
S. E. 42; Aultman v. Utsey, 41 S. C. 304, 19 S. E. 617. 

Where decision of the Court found a balance due on former judgment and directed execution 
thereof, the Clerk properly entered up judgment on the decision for the balance. Garvin v. Garvin, 
21 S. C. 83. 

The Judge has power upon hearing referee's report in law case to reverse, affirm or 
modify his finding of fact. Meetze v. R. R., 23 S. C. 1; Griffith v. R. R., 23 S. C. 25. 

Decision valid though filed more than sixty days after Court. Koon v. Munro, 11 S. C. 139. 

Decision overruling demurrer should be given in writing and signed but here requirement 
held to be waived. Mauldin v. Seaboard Air Line Railway, 73 S. C. 11, 52 S. E. 677. 

The Statute providing for appeal upon the evidence appearing on the trial has no application 
where the construction of the written instrument by the Court was the issue, under this 
Section. DuBose v. Kell, 105 S. C. 89, 89 S. E. 555. 

(590) § 3. Exceptions — How and When Taken — Judgment at Gen- 
eral Term. — 1. For the purpose of an appeal, either party may except to 
a decision on a matter of law arising apon such trial, within ten days after 
written notice of the filing of the decision, order, or decree, as provided 
in Sections 645 and 646 : Provided, however, That where the decision filed 
under Section 589 does not authorize a final judgment, but directs further 
proceedings before a referee or otherwise, either party may move for a 
new trial at the next term, and for that purpose may, within ten days 
after notice of the decision being filed, except thereto, and make a case or 
exceptions as above provided in cases of an appeal. 

2. And either party desiring a review upon the evidence appearing on 
the trial, either of the questions of fact or of law, may, at any time within 
ten days after notice of the judgment, or within such time as may be pre- 
scribed by the rules of the Court, make a case or exceptions, in like manner 
as upon a trial by jury, except that the Judge, in settling the case, must 
briefly specify the facts found by him, and his conclusions of law. 

Civ. Pro., '12, § 328 ; Civ. Pro., '02, § 290 ; 1870, XIV, § 292. 

If exception has been taken to a decision on a matter of law arising on the trial, no further 
exception need be made thereto as required by this Section. Coleman v. Heller, 13 S. C. 491. 

In appealing from a decree in chancery rendered in vacation, it was held not necessary 
to serve the Judge with a copy of the exceptions. Godbold v. Vance, 14 S. C. 458. Since 
the amendments to § 646, it is not now necessary to serve the Judge with the exceptions 
in any case. 

Matters stated onlv in the exceptions are not facts in the case. Lites v. Addison, 27 S. C. 226, 
3 S. E. 214. 

This Section controls on hearing of referee's report in a law case on exceptions taken, and 
allows a review of his findings of facts as well as of law. Meetze v. R. R., 23 S. C. 1 ; 
Griffith V. R. R.. 23 S. C. 25. 

First National Bank v. Lee, 68 S. 0. 13 6, 46 S. E. 771. 

A final judgment cannot be reviewed unless notice of appeal therefrom be served within 
the time required by law. DuBose v. Kell, 105 S. C. 89, 89 S. E. 555. 

(591) § 4. Proceedings Upon Judgment on Issue of Law. — On a 

judgment for the plaintiff upon an issue of law, the plaintiff may proceed 
in the manner prescribed by Section 526, upon the failure of the defend- 
ant to answer, where the summons was personally served. If judgment be 
for the defendant, upon an issue of law, and if the taking of an account 



OF SOUTH CAROLINA 227 

or the proof of any fact be necessary to enable the Court to complete the 
judgment, a reference or assessment by jury may be ordered, as in that 
Section provided. 
Civ. Pro., '12, § 329 ; Civ. Pro., '02, § 291 ; 1870, XIV, § 293. 



CHAPTER V. 
Trial by Referees. 

(592) § 1. All Issues Referable by Consent. — All or any o f the 

issues in the action, whether of fact or of law, or both, may be referred 
upon the written consent of the parties; and, in such ease, the order, if 
taken in vacation, may be made by the Clerk. 

Civ. Pro., '12, § 330; Civ. Pro., '02, 292; R. S. 1872, 180, § 15. 

As to the application of this Chapter in those counties where the office of Master exists, 
see Chapman v. Lipscomb, 15 S. C. 474. 

All issue in law may be so referred. Meetze v. R. R., 23 S. C. 1 ; Griffin v. R. R., 23 S. 0. 25. 
But not except upon written consent. Sale v. Meggett, 25 S. C. 72. An order of reference, 
by con.sent, is suiificient. City Council 7-. Rvan, 22 S. C. 339; Martin v. Martin, 24 S. C. 
446; Calvert v. Nickles, 26 S. C. 304, 2 S. E. il6; Trenholm v. Morgan, 28 S. C. 268, 5 S. E. 721. 

An order of reference which does not adjudge the rights of the parties is an administrative 
order which may be changed by a succeeding Judge for cause shown. New England Mortg., etc., 
Co. V. Simms, 43 S. C. 311, 21 S. E. 113. 

Order of reference made by consent, where compulsory order of reference might be made, 
is not vitiated by master's bringing in other parties bv amendment of complaint. Beall Co. v. 
Weston, 83 S. C. 491, 65 S. E. 823. 

(593) § 2. When Reference May Be Compulsorily Ordered. — Where 
the parties do not consent, the Court may, upon the application of either, 
or of its own motion, except where the investigation will require the de- 
cision of difficult questions of law, direct a reference in the following 
cases : 

Under this Section, the Court has no authority, without the consent of both parties, to 
order reference where the investigation requires the determination of questions of law. 
Trump V. Mikell, 105 S. C. 280. 89 S. E. 645. 

1. Where the trial of an issue of fact shall require the examination of a 
long account on either side; in which case the referee may be directed to 
hear and decide the whole issue, or to report upon any specific question of 
fact involved therein ; or, 

2. Where the taking of an account shall be necessary for the informa- 
tion of the Court, before judgment, or for carrying a judgment or order 
into effect; or, 

3. Where a question of fact, other than upon the pleadings, shall arise, 
upon motion or otherwise, in any stage of the action. 

4. The reference shall be made, in all counties in which the office of 
Master has been established, to a Master ; in all other counties the reference 
shall be made to such person or persons as shall be appointed as provided 
in Section 595 : Provided, That in the Counties of Anderson, Colleton and 
Orangeburg, the reference shall be to the Judge of Probate for said coun- 
ties, respectively. 

Civ. Pro., '12, § 331 ; Civ. Pro., '02, § 293 ; Civ. '12, § 1372 ; R. S. 1S72, ISO, § 15 ; 
1918, XXX, 833. 

This Section does not impair the common law power of the Court to submit a case, with 
consent of parties, to arbitration and make the award the judgment of the Court. Bollman v, 
Bollman, 6 S. C. 29. 

The provision of this Section is permissive merely, and not mandatory, and the matter 
of reference is addressed to the discretion of the Judge. Bouland r. Carpin, 27 S. C. 235, 3 S. E. 
219. While he can only refer in the specified cases, it must be assumed that the Judge 



228 CODE OF CIVIL PROCEDURE 

had before him sufficient to show that the case did fall under one of the subdivisions. 
Ferguson r. Harrison, 34 S. C. 169, 13 S. E. 332. And in proper case reference may be ordered 
at same time it is required that other persons be made parties. Sullivan v. Latimer, 32 S. C. 281, 
10 S. E. 1071. 

This Section, as to subdivision 1, must be construed to apply to such cases only as were 
not triable by .iury prior to 1868, and where an action on open account or account stated presents 
no special feature of equitable cognizance the parties are entitled to a jury trial, even though the 
examination of a long account may be involved. Smith v. Bryce, 17 S. C. 538. 

Where a creditor, defendant, claims priority of payment out of a fund in Court, through 
a lien on the property it represented, the case was referable under this Section. State v. 
R. R., 8 S. C. 129. 

So when the defendant to an equitable action sets up a claim for damages, the Court may still 
refer the case. Lamar v. R. R., 10 S. C. 476; Bath Co., v. Langle.y, 23 S. C. 145; Bouland v. 
Carpin, 27 S. C. 235. 3 S. E. 219. 

An order of reference under this Section is not appealable, unless it deprives the appellant 
of a mode of trial to which he is entitled by law. Devereux v. McCrady, 49 S. C. 423, 27 S. E. 
467; Ferguson r. Harrison,, supra. Where a party is entitled to a jury trial, inconvenience of 
witnesses, and the length of time the case would take, if the testimony were taken before the 
jury, are not grounds for granting a compulsory order of reference. Wilson v. Township, 
43 S. C. 299, 21 S. E. 82. See, also, § 533, and note. Order of reference may be made at chambers. 
Bank v. Fennell, 35 S. C. 379, 33 S. E. 385; Green v. McCarter, 64 S. C. 290, 42 S. E. 157; 
Wilkes & Co., v. Arthur, 85 S. C. 299, 67 S. E. 297. A reference may be order under s. d. 2 
against protest of party. Green v. McCarter, supra. After revocation of order of reference, a second 
order may be made. Green r. McCarter, supra. Motion to recommit to Master discretionary. 
Halk V. Stoddard, 62 S. C. 564, 40 S. E. 957; Davidson v. Copeland, 69 S. C. 47, 48 S. E. 
33. Compulsory reference ordered. Greenwood Construction Co. v. Ware Shoals Mfg. Co., 78 
S. C. 169, 58 S. E. 765. 

See E. A. Beall Co. v. Weston, 83 S. C. 494, 65 S. E. 823; Jones v. Haile Gold Mining Co., 
79 S. C. 53, 60 S. E. 35; Engine Co. v. Richland Lodge, 73 S. C. 533, 53 S. E. 993; Fludd v. 
Equitable Life Assur. Soc, 75 S. C. 315, 318, 55 S. E. 762; Williams v. Newton, 84 S. C. 98, 100, 
65 S. E. 959. 

Order of reference to take testimony not appealable. Hall v. McBride, 73 S. C. 227, 53 
S. E. 368. 

Court without consent has power to refer whole issue where long account is involved. Montague 
V. Best, 65 S. C. 457, 43 S. E. 963. 

Circuit Judge may refer case on motion to set aside judgment. Jones v. Mining Co., 79 S. C. 
54. 60 S. E. 35. ' 

Tn case involving issues of partition and of transfer of one interest and of accounting 
for rents and profits. Court may refer all issues without consent. Windham v. Howell, 78 S. C. 
187, 59 S. E. 852. 

Order referring case to take testimony and to state account in action to set aside part 

of will void under § , Civil Code, and to have excess partitioned among heirs at law, 

is valid. Williams v._ Newton, 84 S. C. 98, 65 S. E. 959. 

Whether investigation requires decision of difficult questions of law, so as to give party 
right of trial by Court, is for Judge. Williams v. Newton, 84 S. C. 98, 65 S. E. 959. 

Circuit Judge at chambers out of term time has authority to order all issues referred 
without consent of all parties in action to enforce liability of stockholders for debts of an 
insolvent bank. Wilkes & Co. v. Arthur, 85 S. C. 299, 67 S. E. 297. 

This Section must be considered in connection with Section 533 ante. Rainwater v. M. & P. 
Bank, 108 S. C. 206, 93 S. E. 770. 

(594) § 3. Mode of Trial— Effect of Report— Review.— The trial by a 
Master, or by referees, shall be conducted in the same manner and on sim- 
ilar notice as a trial by the Court. Every referee appointed pursuant to 
this Code of Procedure shall have power to administer oaths in any pro- 
ceedings before him, and shall have, generally, the powers vested in a ref- 
eree by law. Masters and referees shall have the same power to grant 
adjournments, and to allow amendments to any pleadings and to the sum- 
mons, as the Court, upon such trial, upon the same terms, and with the 
like effect. They shall have the same power to preserve order and punish 
all violations thereof upon such trial, and to compel the attendance of 
witnesses before them by attachment, and to punish them as for contempt 
for nonattendance or refusal to be sworn or testify, as is possessed by the 
Court. They must state the facts found, and the conclusions of law, sep- 
arately; and their decision must be given, and may be excepted to and re- 
viewed in like manner, and with like effect, in all respects, as in cases of 
appeal under Section 590 ; and they may in like manner settle a case or 
exceptions. When the reference is to report the facts, the report shall 
have the effect of a special verdict. 

Must Decide Objections to Evidence — And Report Separately. — 
Masters and referees to whom causes may be referred, whether to hear and 
decide the whole issues or to report upon any specific question of fact, or 



OF SOUTH CAROLINA 229 

upon the facts generally, shall hear and decide any objection which may 
be made to the competency, relevancy, or admissibility of any testimony 
which may be offered ; and in case, upon hearing such testimony, the Mas- 
ter or referee shall decide the same inadmissible, he shall take the same, 
subject to such objection, but shall not incorporate such testimony, so held 
by him inadmissible with the rest of the testimony in the body of his report, 
but shall append the same separately at the end of his report. 

May Employ Stenographer. — The Master or referee, at the request of 
any party to a cause who may tender the necessarj- expenses incident 
thereto, ma^^ employ a competent stenographer to take testimony in such 
cause : Provided, That such expenses shall not be taxed in the costs or 
included in the disbursements of the same. 

To Be Read and Signed by Witness — -Testimony Taken by Stenog- 
rapher. — Whenever any cause shall be referred to any Master or referee 
hj any Court in this State, and testimony be taken therein, it shall be the 
duty of such Master or referee to reduce the testimony of the witnesses to 
writing and require the same to be read over and signed by the witness: 
Provided, however. That nothing herein contained shall be construed to 
prevent the use of stenographers for the purpose of taking testimony 
at such references, or to require that the testimony so taken by such stenog- 
raphers shall be read over to or signed by such witnesses. 

Time Prescribed for Report — Penalty — Extension of Time. — -In all 
cases referred to Masters and referees by the Courts of Common Pleas, as 
now provided by law, the Masters or referees shall make and file with the 
Clerks of the Courts of Common Pleas of their respective counties their 
reports within sixty days from the time the action shall be finally sub- 
mitted to them, and in default thereof they shall not be entitled to any fees : 
Provided, That nothing herein contained shall prevent parties to said 
action, or their attorneys, from extending the time by mutual consent in 
writing. 

When the case shall have been heard and decided upon the report of the 
referee and exceptions, the decision may be reviewed on appeal to the Su- 
preme Court. 

Civ. Pro., '12, § 332; Civ. Pro., '02, § 294; 1S70, XIT, § 296; 1SS4, XVII, 733; 1889, 
XX, 294. 

An order of reference, reserving eqiiities, does not prevent Master from determining objections to 
testimony. Devereau.N r. MeCrady. 49 S. C. 423. 27 S. E. 467. 

Referee has power to allow amendments. Mason r. Johnson, 13 S. C. 20. 

This Section does not authorize a Master to require a party to produce a deed. Cartee r. 
Spence, 24 S. C. 5.50. 

It is not mandatory, but directory merely, as to the statement "of facts found and conclusions 
of law," separately. Bollman r. Bollman, 6 S. C. 29. 

The "facts found" are the conclusion of facts drawn from the testimony. There _ should 
first be a clear statement of all material facts, and then should follow the conclusions of 
the referee. Moore r. Johnson, 7 S. C. 303. 

An exception to the report cannot by its own statement supply such defect of facts. 
Thompson r. Thompson, 6 S. C. 2 79. Xor can the Judge hearing the case upon the report 
call for a paper to be prodticed which was not before the referee. Griffin v. Griffin, 20 
S. C. 486. 

It is the duty of the Judge to determine by his own judgment all the issues in an equity 
cause : and the report of the referee merely aids the Judge in reaching his Judgment. 
Thorpe ?•. Thorpe, 12 S. C. 154. 

While the report of the referee upon an issue of fact "shall have the effect of a special verdict," 
as such a verdict it may be set aside, for any cause for which verdicts may be set aside. 
Fields r. Hurst, 20 S. C. 282. But in equity his findings of facts are only to assist the 
Court and for its information, and may be disregarded by the Court. lb. 

When there is a consent order of reference, of all issues, in a law case, the Judge has 
power to review the findings of the facts as well as of law, made by the referee, when the report, 



230 CODE OF CIVIL PROCEDURE 

the testimony and exceptions are all before him. Meetze v. Railroad, 23 S. C. 1; Griffin v. 
Railroad, 23 S. C. 25: Calvert v. Nickles, 26 S. C. 305, 2 S. E. 116. 

A party can be heard in opposition to the confirmation of the report of the referee, 
without having excepted thereto, when he has not been served with a copy or notice thereof 
ten days before Court. Fort v. Goodwin, 36 S. C. 445, 15 S. E. 723. 

The hearing of the exceptions to the Master's report within ten days after notice of 
fijine the report is error. McGee v. Merriman, 43 S. C. 103, 20 S. E. 971. Time 
to file additional exceptions cannot be extended beyond ten days. Verner v. Perry, 45 S. C. 262, 
22 S. E. 888. Exception to referee's report not plead in time. Brown v. Roger's, 71 S. C. 516, 
51 S. E. 257. 

See as to amendments. Beall Co. v. "Weston, 83 S. C. 495, 65 S. E. 823. 

Conclusions binding, upon parties in absence of exceptions. Townes v. Alexander, 69 S. C. 
23, 24, 48 S. E. 214. 

Under the facts here it was not error in master to refuse appellant's motion for leave 
to answer over, case being well advanced under reference. Kiddell v. Bristow, 67 S. C. 175, 45 
S. E. 174. 

(595) § 4.— Referees — How Chosen — Report. — In all cases of reference 
to referees, the parties to the issues in the action, except when the defend- 
ant is an infant or an absentee, may agree in writing upon a person or 
persons, not exceeding three, and a reference shall be ordered to him or 
them, and to no other person or persons. And if such parties do not agree, 
the Court shall appoint one or more referees, not more than three, who 
shall be free from exception. And no person shall be appointed referee to 
whom all parties in the action shall object. And no Judge or Justice of any 
Court shall sit as referee in any action pending in the Court of which he 
is Judge or Justice, and not already referred, unless the parties other- 
wise stipulate. The referee or referees shall make and deliver a report 
within sixty days from the time the action shall be finally submitted; and 
in default thereof, and before the report is delivered, either party may 
serve notice upon the opposite party that he elects to end the reference; 
and thereupon the action shall proceed as though no reference had been 
ordered, and the referees shall not, in such case, be entitled to any fees. 

Civ. Pro., '12, § 333; Civ. Pro., '02, § 295; 1870, XIV, § 297. 

(596) § 5. Referees in Saluda County — Proviso. — The same power and 
authority now given, or that may hereafter be given, to Masters in Equity, 
is hereby conferred upon special referees in Saluda County : Provided^ That 
the Court appointing said special referees may limit their power and 
authority by a written order. 

Civ. Pro., '12, § 334 ; 1911, XXVII, 85. 



CHAPTER VI. 

Manner of Entering Judgment. 

(597) § 1. Judgment May Be for or Against Any of Parties to 
Action. — 1. Judgment may be given for or against one or more of several 
plaintiffs, and for or against one or more of several defendants, and it may 
determine the ultimate rights of the parties on each side, as between them- 
selves. 

Beall Co. v. Weston, 83 S. 0. 491, 496, 65 S. E. 823; Bush v. Aldrich, 110 S. C. 495, 
96 S. E. 922. 

2. Affirmative Relief to Defendant. — And it may grant to the de- 
fendant any affirmative relief to which he may be entitled. 

3. Judgment Against One or More op Defendants. — In an action 
against several defendants, the Court may, in its discretion, render judg- 



OF SOUTH CAROLINA 231 

ment against one or more of them, leaving the action to proceed against 
the others, whenever a several judgment may be proper. 

Where the trial Court had rendered .iudgment for one of the two defendants and against 

the other, under the authority of this Section, the judgment in favor of such defendant becomes 

res judicata on the subsequent trial on reversal of iudgment of the co-defendant. Sparks v. 
A. C. L. R. R. Co., 109 S. C. 145, 95 S. E. 344. 

4. Complaint May Be Dismissed for Neglect to Prosecute Action. — 
The Court may also dismiss the complaint, with costs in favor of one or 
more defendants, in case of unreasonable neglect on the part of the plain- 
tiff to serve the summons on other defendants, or to proceed in the cause 
against the defendant or defendants served. 

Damages and Costs Against Married WoxMen. — In an action brought 
by or against a married woman, judgment may be given against her as 
well for costs as for damages, or both for such costs and for such damages, 
in the same manner as against other persons, to be levied and collected of 
her separate estate, and not otherwise. 

Civ. Pro., '12, § 335; Civ. Pro., '02, § 296; 1870, XIV, § 298. 

Harrison v. Manufacturing Co., 10 S. C. 278. 

In action against survivor of joint obligors and the executor of deceased one, the judgment 
should be separate. Trimmier v. Thompson, 10 S. C. 164. 

A separate judgment may be rendered in favor of one defendant against a plaintiff, upon a 
counterclaim. Plyer r. Parker, 10 S. C. 464. 

Does not applv to partnership contracts where the liability is joint. Pope Mfg. Co. v. 
Welch, 55 S. C. "528. 33 S. E. 787. 

The Court mav give judgment for one defendant as against another, if it can be done 
without injurv to" the plaintiff. Beattie v. Latimer, 42 S. C. 313, 20 S. E. 53. 

Voluntary discontinuance by plaintiff. Forest v. Charleston, 65 S. C. 500, 43 S. E. 952; 
McCabe n. Southern Ry. Co., 107 Fed. 213: .Jordan v. Wilson, 69 S. C. 56, 48 S. E. 37; 
Shelton v. Southern Rv. Co., 80 S. C. 74, 61 S. E. 220; State v. Southern Ry. Co., 82 
S. C. 12, 62 S. E. 1116. 

Evidence of dismissal: formal order not necessary. Jernigan v. Stickley, 80 S. C. 70, 61 
S. E. 211, 128 Am. St. Rep. 855, 15 Am. & Eng". Ann. Cas. 136. 

Beall Co. v. Weston, 83 S. C. 491, 496, 65 S. E. 823. 

Mere failure by plaintif? to proceed with his case after service of summons and docketing does 
not have the effect under this Section, of putting the plaintiff out of Court. Hagood v. 
Riley, 21 S. C. 143. 

The provision for the levy and collection out of her separate estate is merely directory. 
Clinkscales v. Hall. 15 S. C. 602. Only intended to indicate what property of the woman could 
be made liable. Habenicht v. Rawls, 24 S. C. 461. 

(598) § 2. — Relief to Be Awarded to Plaintiff. — The relief granted to 
the plaintiff, if there be no answer, cannot exceed that which he shall have 
demanded in his complaint, but in any other case, the Court may grant him 
any relief consistent with the case made by the complaint, and embraced 
within the issue. 

Civ. Pro., '12, § 336; Civ. Pro., '02, § 297; 1870, XIV, § 299. 

The prayer for relief is not essential to the complaint. Malle r. Moseley, 13 S. C. ^ 439. 

Relief not limited by prayer of complaint, if answer is filed and the relief is consistent 
with the case made. Christopher v. Christopher, 18 S. C. 600. 

Where complaint states notes and credits and demands judgment for a certain sum, and 
answer admitted the allegation, it was error in the Judge to reduce the credits and give 
judgment for a larger sum; this was not consistent with the case made. Straub v. 
Screven, 19 S. C. 445. 

Where the relief given exceeds that demanded, the remedy is by appeal. McMahon v. 
Pug-h, 62 S. C. 506, 40 S. E. 961. 

Godfrey v. Burton Lumber Co., 88 S. C. 132, 144. 

Decree in foreclosure held to be within scope of pleadings. Beall Co. v. Weston, 83 S. C. 491, 
65 S. E. 823. 

(599) § 3. Rates of Damages Where Damages Are Recoverable.- - 

Whenever damages are recoverable, the plaintiff may claim and recover, 
if he show himself entitled thereto, any rate of damages which he might 
have heretofore recovered for the same cause of action. 
Civ. Pro., '12, § 337 ; Civ. Pro., '02, § 298 ; 1870, XIV, § 30O. 

Thia Section only remands such cases to the former practice, and in action for darnages 
not punitive the recovery is limited to the direct pecuniary loss. Sullivan v. Sullivan, 

20 S. C. 509. 

See, also Vance v. Vandercook Co., 170 U. S. 474, 42 L. Ed. 1111. 



232 CODE OF CIVIL PROCEDURE 

(600) § 4. Judgment in Action for Recovery of Personal Property. — 

In an action to recover the possession of personal property, judgment for 
the plaintiff may be for the possession, or for the recovery of possession, or 
the value thereof, in case a delivery cannot be had, and of damages, both 
punitive and actual, for the detention. If the property have been deliv- 
ered to the plaintiff, and the defendant claim a return thereof, judgment 
for the defendant may be for a return of the property, or the value thereof, 
in case a return cannot be had, and damages, both actual and punitive, 
for taking and withholding the same : Provided, That where either party 
gives bond for said property, as provided by law, no punitive damages 
shall be allowed for anything occurring after the giving of the bond. 

Civ. Pro., -12, § 33S; Civ. Pro., '02, § 299; 1907, XXY, 483. 

For measure of damages in claim and deliver}', and form of verdict, see cases cited 
in note to § 542. 

Tlais Section does not apply to action for general damages. Joplin v. Carrier, 11 S. C. 
327: Richey v. DuPre, 20 S. C. 6. 

Judgment may be given for value of the property, though only its recovery and damages be 
demanded. Joplin v. Carrier, 11 S. C. 327. 

In action for bale of cotton, which defendant had sold, or for the value thereof, a verdict 
for stated amount is not invalid, the plaintiff so electing. Richey v. DuPre, 20 S. C. 6. 

In such action, where plaintiff takes possession of the property and the verdict gives him a 
portion of it with damages, and the remainder to the defendant with damages, each party 
is entitled to enter .iudgment. Stoney v. Bailey, 28 S. C. 156, 5 S. E. 347. 

Punitive damages were formerly not recoverable in claim and delivery. Tittle v. Kennedv, 
71 S. C. 1, 50 S. E. 544, 4 Am. & Eng. Ann. Cas. 68. See Brayton v. Beall, 73 S. C. 313, 53 
S. E. 641. And as to consequential damages, see Vance v. Vandercook Co., 170 U. S. 468, 473, 
42 L. Ed. 1111. 

See § 542, as amended. 

Special damages are recoverable in action in claim and delivery against carrier only where 
alleged and proved that carrier had notice of special circumstances. Sheider r. Southern 
.Railway, 83 S. C. 455, 65 S. E. 631. 

(601) § 5.— Clerk to Keep "Abstract of Judgments."— The Clerk shall 
keep among the records of the Court a book for the entry of judgments, to 
be called the "Abstract of Judgments." 

Civ. Pro., '12, § 339 ; Civ. Pro., '02, § 300 ; 1839, XI, 103, § S. . 

The .iudgment must be entered 'on the abstract before execution can issue. Mason, etc., Co. v. 
Killough Music Co., 45 S. C. 11, 22 S. E. 755. 

Failure to enter decree on abstract of .iudgment. Connor v. McCoy, 83 S. C. 165, 65 S. E. 257. 

British, etc., Mortg. Co. v. Strait, 84 S. C. 141, 147, 65 S. E. 1038. 

Under Section 610, sbd. 1 of this Code, construed in connection with this Section and 
Section 603, .iudgment does not become a lien on real estate of judgment debtor in County 
other than that where .iudgment was rendered by mere filing of transcript of .iudgment with 
Clerk of Court of that countv, but onlv on being entered on "abstract of judgments." F. & M. 
Bank v. Holliday, 108 S. C' 116, 93 S. E. 333. 

(602) § 6. Judgment to Be Entered in "Abstract of Judgments" 
Index to Judgments. — In this book shall be entered each case wherein 
judgment may be signed, including each case in dower, partition and 
escheat, after judgment or final order, with separate columns, showing 
number of enrollment, names of parties, cause of action, attorney, date of 
judgment, amount of judgment, time of bearing interest, how judgment 
obtained, costs (separating attorney, clerk, sheriff, witness and total), kind 
of execution, date of issuing. Sheriff's return, when renewed, and satisfac- 
tion, together with an index, by the names of defendants, and a cross in- 
dex by the names of plaintiffs, each alphabetically arranged and kept in 
separate volumes, with the number of enrollment of judgment. And when- 
ever judgment against any party plaintiff or defendant has been entered, 
the names of such party, and each of them, shall appear in the index, and 
the name of the party plaintiff or defendant in whose favor judgment has 
been entered, and each of them, shall appear in cross index. 

Civ. Pro., '12, § 340 ; Civ. Pro., '02, § 301 ; 1897, XXII, 4.3G. 

Mason, etc., Co. v. Killough Music Co., 45 S. C. 11, 22 S. E. 755. 
British, etc., Mortg. Co. r. Strait, 84 S. C. 141, 147, 65 S. E. 1038. 



OF SOUTH CAROLINA 233 

(603) § 7. Judgement Roll — Transcript of Judgment Filed in Any- 
Other County — Effect Of. — Unless the party or his attorney shall furnish 
a judgment roll, the Clerk, immediately after entering the judgment, shall 
attach together and file the following papers, which shall constitute the 
judgment roll : 

1. In case the complaint be not answered by any defendant, the sum- 
mons and complaint, or copies thereof, proof of service, and that no ansM^er 
has been received, the report, if any, and a copy of the judgment. 

2. In all other cases, the summons, pleadings,, or copies thereof, and a 
copy of the judgment, with any verdict or report, the offer of the defend- 
ant, exceptions, case and all orders and papers in any way involving the 
merits and necessarily affecting the judgment. 

A transcript of a final judgment, directing, in whole or in part, the pay- 
ment of money, may be docketed with the Clerk of the Court of Com- 
mon Pleas in any other county, and when so docketed, shall have the same 
force and effect as a judgment of that Court. Such transcript shall set out 
the names of the parties plaintiff and defendant, the attorneys of record, 
the date and amount of the judgment, the time from which interest is to be 
computed, and the amount of costs. 

Civ. Pro., '12, § 341 ; Civ. Pro., '02, § 302 ; 1S70, XIV, § 305. 

"Case" required as part of judgment roll, is in the case prepared on application for new trial, 
and not case for appeal. Tribble r. Poore, 28 S. C. 565, 6 S. E. 577. 

Final .iudgment applies to the Circuit Court. Garrison r. Dougherty, 18 S. C. 486. 

A transcript of a final .iudgnient is a copy of the entry in the judgment book. Harrison v. 
Manufacturing Co., 10 S. C. 2 78. But is good although certified to be from the docket of 
judgments instead of the judgment book, and without the Clerk's name, but with his seal. 76. 

See F. & M. Bank v. Holliday, note under Section 601, ante. 



TITLE IX. 

OF THE EXECUTION OF THE JUDGMENT IN CIVIL ACTIONS. 

Chapter I. The Execution, 233. 

Chapter II. Proceedings Supplementary to the Execution, 240. 



CHAPTER I. 

The Execution. 

(604) § 1. Execution Within Ten Years of Course.— Writs of 

execution for the enforcement of judgments shall conform to this Title; 
and the party in whose favor judgment has been heretofore or shall here- 
after be given, and, in case of his death, his personal representatives duly 
appointed, may, at any time within ten years after the entry of judgment, 
proceed to enforce the same, as prescribed by this Title. 

Civ. Pre, '12, § 342 ; Civ. Pro., '02, § 303 ; 1870, XIV, § 306 ; 1873, XY, 498, § 15 ; 
1885, XIX, 229. 

This Section is expressly retrospective and applies to executions on previous as well as 
subsequent judgments. Garvin v. Garvin, 34 S. C. 388, 13 S. E. 625. 

Executions may issue at any time within ten years without leave ; and at any time after 
ten years with leave ; and if then issued without leave, the execution is not void, but only 
voidable for irregularity. Lawrence v. Grambling, 13 S. C. 120. Consent will cure want 
of leave, and it may be presumed from payment on the execution or failure to move to set it 
aside. lb. 



234 CODE OF CIVIL PROCEDURE 

Code of 1870 not applicable to case in which execution was lodged in sheriff's office before 
its adoption, and mere lodging was compliance with law at that time. Kennedy v. Kennedy, 
86 S. C. 483, 68 S. E. 664. 

Under Art. 5. Sec. 15 of the Constitution, and this Section and Section 607, the Court has 
power to compel specific performance of a contract of a non-resident to convex lands within 
the State and within the .iurisdiction of the Court. Bush v. Aldrich, 110 S. C. 491, 96 S. E. 922. 

(605) § 2. Judgments — How Enforced. — Where a judgment requires 
the payment of money, or the delivery of real or personal property, the 
same may be enforced, in those respects, by execution, as provided in this 
Title. Where it requires the performance of any other act, a certified copy 
of the judgment may be served upon the party against whom it is given, 
or the person or officer who is required thereby or by law to obey the same, 
and his obedience thereto enforced. If he refuse, he may be punished by 
the Court as for contempt. 

Civ. Pro., '12, § 343; Civ. Pro., '02, § 304; 1870, XIV, § 308. 

Order for arrest on refusal to pay over money fraudulently obtained. Ex parte Hutto, 78 
S. C. 560, 60 S. E. 34. 

Judgment of foreclosure and sale of mortgaged premises is not a judgment for delivery 
of real property to be enforced by execution alone, btit may be enforced by attachment. Trenholm 
V. Wilson, 13 S. C. 174; LeConte v. Irwin, 23 S. C. 106; Ex parte Winkler, 31 S. C. 171. 

(606) § 3. The Different Kinds of Execution. — There shall be three 
kinds of executions: One against the property of the judgment debtor; 
another against his person; and the third for the delivery of the posses- 
sion of real or personal property, or such delivery with damages for with- 
holding the same. They shall be deemed the process of the Court. 

Civ. Pro., '12, § 344 ; Civ. Pro., '02, § 305 ; 1870, XIV, § 309. 

(607) § 4. To What Counties Execution Issued — Sales — By Whom 
Made — Execution Against Married Women. — When the execution is 
against the property of the judgment debtor, it may be issued to the Sheriff 
of any county where judgment is docketed. When it requires the deliv- 
ery of real or personal property, it must be issued to the Sheriff of the 
County where the property, or some part thereof, is situated. Executions 
may be issued at the same time to different counties. 

Property adjudged to be sold must be sold in the county where it lies, 
except as hereinafter otherwise provided, and in the following manner: 

All sales of real estate under the orders of the Probate Court shall be 
made by the Judge of Probate ; all sales under the order of the Court 
where the title is to be made by the Clerk of the Circuit' Court shall be 
made by the Clerk. In those counties where the office of Master exists, 
the Master shall make all sales ordered by the Court in granting equitable 
relief, conformably to the practice of the Circuit Court, or to the practice 
of the Courts of Equity of this State before said Courts were abolished. 
And whenever real estate is adjudged to be sold by a Master, such sale 
may take place by consent of the parties to the cause, or their attorneys, 
or, when infants are parties, by consent of their guardians ad litem, or 
their attorneys, in any county which the Court may direct. 

Whenever the Court of Common Pleas in any county shall have acquired 
jurisdiction over real estate lying in another county, it shall be lawful for 
the Master for the county in which the action is brought to sell such real 
estate in the county in which the land is situated. 

All other judicial sales shall be made by the Sheriffs, as now provided by 
law. 



OF SOUTH CAROLINA 235 

Upon such sale being made, and the terms complied with, the officer 
making the same must execute a conveyance to the purchaser, which con- 
veyance shall be effectual to pass the rights and interests of the parties 
adjudged to be sold. 

An execution may issue against a married woman, and it shall direct 
the levy and collection of the amount of the judgment against her from 
her separate propertj^, and not otherwise. 

Civ. Pro., '12, § 345; Civ. Pro., '02, § 306; 1870, XIV^ § 310; 1872, XV, 194; 1878, 
XVI, 336, 558; 1884, XVIII, 70S; 1885, XIX, 7. 

A sale by referee is invalid, but binds defendant until notice of appeal from the decree, 
and a purchaser at the sale will not be affected by appeal afterwards taken. Armstrong v. 
Humphreys, 5 S. C. 128. 

Execution may issue upon a transcript of the judgment filed in a new County, against lands 
embraced in the new County. Garvin v. Garvin, 34 S. C. 388, 13 S. E. 625. Where Sheriff 
sells land under execution on a .iudgment not rendered when the land was sold by defendant, 
the purchaser will take good title, against the vendee, when there is in Sheriff's office 
an execution on an older judgment. 7b. 

In counties where there is no Master, the Court may order a sale of foreclosure to be 
made by the Sheriff. Childs v. Alexander, 22 S. C. 169. Or where he orders titles made 
by the Clerk he may order the sale to be made by him also. Port v. Assman, 38 S. C. 253, 
16 S. E. 887. If sale is ordered to be made by one other than the proper officer, he mav inter- 
vene to protect his rights. New England Mortg. etc., Co. v. Kinard, 43 S. C. 311, 21 S. E. 113. 

The sale of Sheriff made in another county than where the land lies gives indisputable 
title to purchaser, as to defendant and his vendee, where the defendant failed, when served 
with summons, to show cause against renewal of the execution. Freer v. Tupper, 21 S. 0. 
75. So sale by Sheriff under renewal of execution more than twenty years old where 
defendant failed to object, when summoned to show cause against the renewal. Jackson v. 
Patrick, 10 S. C. 197; McNair r-. Ingraham, 21 S. C. 70. 

This provision as to execution against a married woman is merely directory, and not 
necessary to its validity. Clinkscales v. Hall, 15 S. C. 602. 

Cited to show that the limitation upon the right of a married woman to contract was 
not intended to indicate what property would be liable for the breach thereof. Habenicht v. 
Rawls, 24 S. C. 461. _ 

A sale made by receiver for the purpose of realizing upon property not in contravention of this 
Section. Ex parte O'Bannon, 65 S. C. 488, 43 S. E. 958. 

Effect of order confirming judicial sale ; receipt of proceeds as estoppel to attack. Connor v. 
McCoy, 83 S. C. 173, 65 ' S. E. 257. 

Inadequacy of bid not ground of attack. lb. 

Martin v. Hutto, 82 S. C. 440, 64 S. E. 421. 

See, also. In re Rugheimer, 36 Fed. 369, 373. 

See Bush v. Aldrich, note under Section 604 ante. 

(608) § 5. Execution Against the Person — ^In What Cases. — If the 

action be one in which the defendant might have been arrested, as pro- 
vided in Section 442 and Section 444, an execution against the person of 
the judgment debtor may be issued to any county within the jurisdiction 
of the Court, after the return of an execution against his property unsat- 
isfied in whole or in part. But no execution sball issue against the per- 
son of a judgment debtor, unless an order of arrest has been served, as 
in this Code of Procedure provided, or unless the complaint contains a 
statement of facts showing one or more of the causes of arrest required 
by Section 442. 

Civ. Pro., '12, § 346 ; Civ. Pro., '02, § 307 ; 1870, XIV, § 311. 

A person so arrested is entitled to obtain a discharge under the insolvent debtor's Act., 
§§799-817; Hurst v. Samuels, 29 S. C. 476, 7 S. E. 822. 

Ex vartp. Berry, 85 S. C. 243, 67 S. E. 225, 20 Am. & Eng. Ann. Cas. 1344. 

This Section specifies the conditions on which execution against person may issue, 
Martin ii. Hutto, 82 S. C. 432, 440, 64 S. E. 421. 

Execution may be issued against persons for fraiidulent misapplication and embezzlement, 
after return of execution against his property unsatisfied without rule to show cause where 
defendant has had notice to show why relief should not be granted. Martin v. Hutto, 
82 S. C. 432, 64 S. E. 421. 

Where judgment was obtained against the defendant in an action for damages for wrongfully 
causing plaintiff's discharge from his employment, it was proper for the Court to issue an order 
providing that an execution should issue against the defendant's person if execution against 
his property was returned unsatisfied. Castles v. S. C. L. & C. A., 104 S. C. 81, 88 S. E. 273. 

(609) § 6. Forms of Execution. — The execution must be directed to 
the Sheriff, or Coroner when the Sheriff is a party or interested, attested 
by the Clerk, subscribed by the party issuing it, or his attorney, and must 



2a6 CODE OF CIVIL PROCEDURE 

intelligibly refer to the judgment, stating the Court, the county where 
the judgment roll or transcript is filed, the names of the parties, the 
amount of the judgment if it be for money, the amount actually due 
thereon, and the time of docketing in the county to which the execution 
is issued, and shall require the officer, substantially, as follows : 

1. If it be against the property of the judgment debtor, it shall require 
the officer to satisfy the judgment out of the personal property of such 
debtor; and if sufficient personal property cannot be found, out of the real 
property belonging to him. 

2. If it be against real or personal property in the hands of personal 
representatives, heirs, devisees, legatees, tenants of real property, or trus- 
tees, it shall require the officer to satisfy the judgment out of such prop- 
erty. 

3. If it be against the person of the judgment debtor, it shall require 
the officer to arrest such debtor and commit him to the jail of the county 
until he shall pay the judgment or be discharged according to law. 

In an action for division of crops and judgment having been rendered entitling plaintiff 
to one third of same, stating its value, was not an ordinary money judgment, and the 
plaintiff was entitled to execution against the person of the defendant after the return of an 
execution against his property unsatisfied. Maxwell v. Horton, 107 S. C. 380, 93 S. E. 4. 

4. If it be for the delivery of the possession of real or personal property, 
it shall require the officer to deliver the possession of the same, particu- 
larly describing it, to the party entitled thereto, and may, at the same time, 
require the officer to satisfy any costs, damages, or rents or profits recovered 
by the same judgment, out of the personal property of the party against 
whom it was rendered, and the value of the property for which the judg- 
ment was recovered, to be specified therein; if a delivery thereof cannot 
be had, and if sufficient personal property cannot be found, then out of 
the real property belonging to him, and shall, in that respect, be deemed 
an execution against property. 

Civ. Pro., '12, § 347; Civ.' Pro., '02, § 308; 1870, XIV. § 312. 

The judgment must be entered on the abstract before execution can issue. Mason, etc., Co. v, 
Killough Music Co., 4.5 S. C. 11, 22 S. E. 755. 

Ex parte Goldsmith, 68 S. C. 528, 47 S. E. 984. 

Martin u. Hodge, 87 S. C. 214, 216, 6 S. E. 225. 

This Section specifies terms on which execution against persons shall issue. Martin v. 
Hutto, 82 S. C. 432j 440, 64 S. E. 421. 

(610) § 7. Final Judgments — Lien on Real Estate for Ten Years — 
Transcripts — Where Lien Filed. — 1. Final judgments entered in any 
Court of record in this State, subsequent to the 25th day of November, 
A. D. 1873, shall constitute a lien upon the real estate of the judgment 
debtor in the county where the same is entered for a period of ten years 
from the date thereof; and a transcript of such judgment may be filed in 
the office of the Clerk of the Court of Common Pleas of any other county, 
and, when so filed, shall constitute a lien on the real property of the 
judgment debtor in that county from the date of the filing thereof, with 
the same force and effect as the original judgment, for the period of ten 
years from the entry of said original judgment : Provided, That the ver- 
dict of a jury, where rendered for an amount of money, and the order of 
the Court, in a cause tried or determined by the Court, upon a money de- 
mand, shall be a lien upon all the real estate of the person against whom 
the same is rendered, from the rendition of such verdict or order until the 



OF SOUTH CAROLINA 237 

expiration of five days from the rising of the Court at which the same was 
rendered: Provided, further, That all such verdicts and orders rendered 
and issued at the same term of Court shall have no priority one over an- 
other, notwithstanding" they may be rendered and issued on different days 
of said Court. 

See case Bank r. HoUiday, under Section 601, ante. 

2. Revival of Judgment — Limitations — Manner — Transcripts. — A 
final judgment may be revived at any time within the period of ten years 
from the date of the original entry thereof by the service of a summons 
upon the judgment debtor, as provided by law, or, if the judgment debtor 
be dead, upon his heirs, executors or administrators, or, if he be removed 
out of the State, by publication of such summons in the manner provided 
in Section 392 for publication of summons on complaint to be filed, to 
show cause, if any he or they may have, why such judgment should not be 
revived ; and if no good cause be shown to the contrary, it shall be decreed 
that such judgment is revived. And such judgment shall thereupon con- 
stitute a lien upon the real estate of the judgment debtor, then owned 
or thereafter to be acquired by such judgment debtor, in the county where 
the judgment is entered, for a period of ten years from the entry of such 
decree ; but such lien shall not revert back to the date of the original entry 
of such judgment. And a transcript of said summons and decree may be 
filed in the office of the Clerk of the Court of any other county, and when 
so filed the judgment shall have like liens in that county from the date of 
filing of such transcript and for a like period as in the county in which 
the judgment is revived as aforesaid : Provided, That a judgment shall not 
in any case constitute a lien on any property of the judgment debtor in any 
county after the lapse of twenty years from the date of the original entry 
of the judgment. 

Summons to show cause why .iudgment should not be revived must be served within ten years 
of original entry of .iudement. Smith v. Ellison, 78 S. C. 120, 58 S. E. 966. Ten years 
within which revival proceedings may be commenced, begins to run from the date of the order for 
Judgment. Blohme r. Sohmancke, 81 S. C. 84, 61 S. E. 1060. 

Lien of .iudgment not affected by bankruptcy proceedings. Ex parte Anderson, 82 S. C. 136, 
62 S. E. 513.' 63 S. E. 354. 

A judgment obtained more than ten vears prior to service of summons to renew execution 
is barred. Bank ?;. Warehouse Co., 98 S. C. 168, 82 S. E. 405. 

3. Revival op Code Judgments Prior to November, 1883 — Decree — 
Transcripts. — Judgments obtained between the 1st day of March, 1870, 
and the 25th day of November, 1873, may be revived and made a lien at 
any time within two years from the 24th day of December, 1885, by ser- 
vice of summons upon the judgment debtor, or his heirs, executors or ad- 
ministrators, or, if he or they be removed out of the State, by publica- 
tion of the summons as hereinbefore provided, to show cause, if any he 
have, why the judgment should not be revived and made a lien according 
to the provisions of this chapter ; and if no sufficient cause be shown to 
the contrary, then it shall be decreed that such judgment is revived, and 
it shall thereupon constitute a lien on all the real property of the judg- 
ment debtor in the county where said decree is entered for a period of ten 
years from the date of the entry of said decree. A transcript of such sum- 
mons and decree may be filed in the office of the Clerk of the Court of 
Common Pleas of any other county, and when so filed such judgment shall 
have like -liens in that county from the date of the filing thereof and for a 



238 CODE OP CIVIL PROCEDURE 

like period, as in the county in which the judgment is revived and made a 
lien aforesaid. 

4. Judgments Not a Lien on Property Exempt. — This Section shall not 
be construed so as to make final judgments in any case a lien on the real 
property of the judgment debtor exempt from attachment, levy and sale 
by the Constitution. 

5. Not to Apply to Judgments Prior to 1870. — Nothing herein con- 
tained shall be construed to affect the lien of judgments or executions en- 
tered prior to the 1st day of March, A. D. 1870. 

Renewals of Judgments to Be Indexed. — All Registers of Mesne Con- 
veyance of the various counties of this State, and all the Clerks of Court 
where, by law, they are required to perform the duties of such Register of 
Mesne Conveyances, are required to reindex all renewals of judgments. 
Any officer failing to comply with the provisions of this Act shall be liable 
for such failure on his official bond. 

Civ. Pro., '12, § 348; Civ. Pro., '02, § 309; 1S70, XIV, § 313; 1873, XV, 498; 1884, 
XVIII, 749; 1885, XIX, 229; 1909, XXVI, 39; 1910, XXVI, 621. 

As to effect on injunction against enforcing execution on lien, see § 485 ; Ex parte Graham 
54 S. C. 171, 32 S. E. 67. Mode of renewal. lb; McLaurin v. Kelly, 40 S. C. 488, 19 S. E. 143. 

The lien allowed to decrees and judsments is no part of the remedy of enforcement, and an 
Act which prevented such lien in absence of levy did not impair the obligation of the contract 
and was valid. Moore v. Holland. 16 S. C. 15. So is an Act that limits tUe duration 
of such retrospectively. Henry v. Henry, 31 S. C. 1, 9 S. E. 726. 

The Section providing no time within which the summons to revive a judgment may 
be issued. The Courts cannot fix any. Alsobrook v. Watts, 19 S. C. 539. Any legal objection in 
response to the summons may be considered by the Courts as to whether it is suiTicient. lb. 
The provisions as to the renewal of judgment after they have lost their active energy do not apply to 
judgments entered prior to March 1st, 1870. The only change as to such judgments is the substitu- 
tion of the summons to revive them or to renew executions in place of the old remedy of 
scire facias. Lauderdale v. Mahon, 41 S. C. 97, 19 S. E. 294; Lawton v. Perry, 40 S. C. 
255, 18 S. E. 861. 

Executions having an unexpired lien before the Act of 25th November, 1873, then and 
thereunder acquired an extended lien for ten years from date of the lien attached. Arnold v. 
McKeller, 9 S. C. 335: Addicks v. Lowry, 12 S. C. 97. 

A judgment so revived continues to have a lien from its original entry and ranks as 
of that date. Railroad Co. v. Marshall, 40 S. C. 63, 18 S. E. 247; White- 1;. Moore, 32 S. 0. 226, 
10 S. E. 950. Subdivision 2 does not apply to judgments previously obtained. King v. 
Belcher, 30 S. C. 381, 9 S. E. 359. The judgment may be revived although signed by one 
who styled himself "deputy clerk," but was never regularly appointed. lb. 

The proceedings to revive is not by action, but by summons to show cause ; and when 
defendant fails to do so at time notified, the Court may, in its discretion, give judgment by 
default or allow him to answer. Carroll v. Simkins, 14 S. 0. 223. 

Where such summons to revive judgment before the Code is served within twenty years 
and defendant consents to revival and acknowledges debt to be due, the presumption of payment 
ceases to run, and upon revival the lien is continued for twenty vears longer. Adams v, 
Richardson, 32 S. 0. 139. 10 S. E. 931; Wood v. Milling. 32 S. C. 378, 10 S. E. 1081; 
Leitner v. Metz, 32 S. C. 383, 10 S. B. 1082; Railroad Co. v. Marshall, 40 S. C. 63, 18 S. E. 247. 

There is no lien under a decree in equity as a judgment until it is properly entered 
in the abstract of judgment. Reid v. McGowan, 28 S. C. 74, 5 S. E. 215. 

A judgment is not a lien on the homestead of a debtor, either in his possession or that 
of vendee. Cantrell v. Fowler, 24 S. C. 424; Ketchin v. McCarley, 26 S. C. 1, 11 S. E. 1099. 
Or even in lands unpartitioned. Nance v. Hill, 26 S. C. 227, 1 S. E. 897. 

The renewal of the lien exists as to the original parties, but not as to purchasers for 
value, before the renewal is made effective. Woodward v. Woodward, 39 S. 0. 261, 17 S. E. 638; 
Kaminsky v. Trantham, 45 S. C. 393, 23 S. E. 132. The order of renewal need not be 
entered on abstract to be effective. Rowland v. Shocldey, 43 S. 0. 246, 21 S. E. 21. 

As to renewal of Magistrate's judgments, see Road v. Patrick, 37 S. C. 520, 16 S. B. 536; 
Proceedings under this Section res judicata. Babb v. Sullivan, 43 S. C. 436, 21 S. E. 277. 

If homestead in lands be once set apart, no exception filed, and proceedings recorded, it can 
never be sold to satisfy that judgment, although there may have been errors of law in the 
assignment. Sloan v. Hunter, 65 S. C. 239, 43 S. B. 788. 

A judgment cannot be revived bv summons to show cause served after ten vears from 
date of original entry. Smith v. Ellison, 78 S. C. 120, 58 S. E. 966. 

Remedy to revive judgment. State v. Johnson, 77 S. C. 256, 57 S. E. 846. 

(611) § 8. When Executions May Issue — Limita,tions — Personal 
Property — Magistrate's Judgement. — 1. Executions may issue upon final 
judgments or decrees at any time within ten years from the date of the 
original entry thereof, or within ten years from the date of any revival 
of the same, and shall have active energy during said periods, respectively, 



OF SOUTH CAROLINA 239 

without any renewal or renewals thereof, and thus whether any return 
or returns may or may not have been made during such periods, respect- 
ively, in said executions : Provided, The execution shall not issue or be 
renewed in any case after the lapse of twenty years from the date of orig- 
inal entry of the judgment. Executions shall not bind the personal prop- 
erty of the debtor, but personal property shall only be bound by actual 
attachment or levy thereon for the period of four months from the date of 
such levy. When judgment shall have been rendered in a Court of a 
Magistrate, or other inferior Court, and docketed in the office of the Clerk 
of the Circuit Court, the application for leave to issue execution must 
be to the Circuit Court of the county where the judgment was rendered. 

A .iudgment which has lost its active energy may be proved against the estate of the judgment 
debtor and paid as a judgment. Ex parte Goldsmith, 68 S. C. 528, 47 S. E. 984. 

Judgments may be set-off against each other on motion and rule to show cause. Ex parte 
Hiers, 67 S. C. 109, 45 S. E. 146, 100 Am. St. Rep. 713. See case Bank v. Warehouse Co., Note 
under Section 610 ante. 

2. Returns. — The Sheriff, Coroner, or other officer, with whom final 
process as aforesaid shall be lodged, shall, at each regular term of the 
Court from which the said execution or process was sued out, during the 
continuance of its active energy, until full execution thereof be returned, 
make a return to the office of the Clerk of the Court of Common Pleas of 
his actings and doings thereunder. If he shall have fully executed, he 
shall return the process, with the manner of its execution ; if he shall have 
partially executed, he shall return on oath to the Clerk, a statement in 
writing, under his hand, of such partial execution, with the reason of his 
failure as to the remainder; if he shall have wholly failed to make execu- 
tion, he shall return on oath, a statement in writing under his hand, of his 
failure, with the reasons ; and in any event, on the first day of the term at 
which the active energy of the process shall cease as herein provided, he 
shall return the process, if the same has not been before returned, as fully 
executed ; and the return of the officer made as aforesaid shall, for all pur- 
poses, have the same legal effect as if the said process had been made re- 
turnable to the term succeeding its first lodgment, and renewed after each 
subsequent regular term. For failure or neglect to make any of the returns 
above mentioned, or for any false return, the Sheriff, or other officer as 
aforesaid, shall be subject to rule, attachment, action, penalty, and all 
other consequences provided by law for neglect of duty by executive or 
judicial officers. 

Civ. Pro., '12, § 349 ; Civ. Pro., '02, § 310 ; 1875, XV, 499 ; 1885, XIX, 229. 

Judgments never were a lien on personal property, and under the Code an execution 
has no lien until levy. Kohn u. Meyer, 19 S. C. 200. 

This Section has no retroactive effect ; applies only to executions issued after adoption 
of Code, and does not divest lien of execution of judgment obtained before that time. Warren v. 
Jones, 9 S. C. 288; Railroad Co. v. Marshall, 40 S. 0. 63, 18 S. E. 247; Lauderdale v. 
Mahon, 41 S. C. 104, 19 S. E. 294; Lawton v. Perry, 40 S. C. 255, 18 S. E. 861. 
Applies to Maaistrate's judgments, 59 S. C. 70, 37 S. E. 39. Such lien continues 
after active energy of execution has expired and attaches to personal property acquired 
after adoption of the Code. Carrier v. Thompson, 11 S. C. 79. Such execution 
may be renewed by consent. lb. Although the Sheriff fails to make such return, it is 
no reason why he should not be competent to prove that endorsements on executions were 
made by him and that he had not sold the property levied on. Bank v. Kinard, 28 S. C. 
101, 5 S. E. 464. ) 

A term of the Common Pleas held at the conclusion of the General Sessions, under 
§ 64, is not a regular term within the meaning of this Section. McLaurin v. Kelly, 40 S. C. 486, 
19 S. E. 143. An order giving leave to issue execution has the effect of reviving the 
judgment. lb. 

(612) § 9. Actions on Judgments After Lapse of Twenty Years. — 

Nothing in the two preceding Sections contained shall be construed to 



240 CODE OF CIVIL PROCEDURE 

prevent an action upon a judgment after the lapse of twenty years from 
the date of the original entry thereof, and a recovery thereon, in case it 
shall be established by competent and sufficient evidence that said judg- 
ment, or some part thereof, remains unsatisfied and due ; nor shall be con- 
strued as prejudicing any action pending on the 24th of December, 1885. 
Civ. Pro., '12, § 3.50; Civ. Pro., '02, § 311; 3885, XIX, 229. 

The time during which a , defendant is absent from the State must be deducted from the 
time -prescribed bj' the Statute to bar an action on a judgment, and the same rule applies 
to the presumption of payment from lapse of time. Latimer v. Trowbridge, 52 S. C. 193, 29 S. E. 
634 This Section applies to judsments obtained before as well as those obtained after November 
25, 1873. Lawton v. Perrv, 40 'S. C. 255, 18 S. E. 861. 

Smith V. Ellison, 78 S. C. 123, 58 S. E. 966. 

Order of revival is adjudication that judgment has not been paid, and avoids statute 
of limitations. Gregory v. Perry, 71 S. C. 246, 50 S. E. 787. 



CHAPTER II. 

Proceedings Supplementary to the Execution. 

(613) § 1. Order for Discovery of Property — Examination of 
Judgment Debtor, Etc. — When an execution against property of the judg- 
ment debtor, or any of the several debtors in the same judgment, issued to 
the Sheriff of the county where he resides or has a place of business, or, 
if he do not reside in the State, to the Sheriff of the county where a judg- 
ment roll is filed, is returned unsatisfied, in whole or in part, the judg- 
ment creditor, at any time after such return is made, is entitled to an 
order from a Judge of the Circuit Court, requiring such judgment debtor 
to appear and answer concerning his property before such Judge, at a time 
and place specified in the order within the county to which the execution 
was issued. 

1919, XXXI, 236. 

After the issuing of an execution against property, and upon proof by 
affidavit of a party, or otherwise, to the satisfaction of the Court, or a 
Judge thereof, that any judgment debtor has property which he unjustly 
refuses to apply towards the satisfaction of the judgment, such Court or 
Judge may, by an order, require the judgment debtor to appear at a speci- 
fied time and place to answer concerning the same ; and such proceedings 
may thereupon be had for the application of the property of the judgment 
debtor towards the satisfaction of the judgment as are provided upon the 
return of an execution. 

On an examination under this Section, either party may examine wit- 
nesses in his behalf, and the judgment debtor may be examined in the same 
manner as a witness. 

Instead of the order requiring the attendance of the judgment debtor, 
the Judge may, upon proof by affidavit, or otherwise, to his satisfaction, 
that there is danger of the debtor's leaving the State or concealing himself, 
and that there is reason to believe he has property which he unjustly re- 
fuses to apply to such judgment, issue a warrant requiring the Sheriff of 
any county where such debtor may be, to arrest him and bring him before 
such Judge. Upon being brought before the Judge, he may be examined 
on oath, and, if it then appears that there is danger of the debtor's leaving 
the State, and that he has property which he has unjustly refused to apply 
to such judgment, ordered to enter into an undertaking, with one or more 



OF SOUTH CAROLINA 241 

sureties, that lie will, from time to time, attend before the Judge, as he 
shall direct, and that he will not, during the pendency of the proceedings, 
dispose of any portion of his property not exempt from execution. In 
default of entering into such undertaking, he may be committed to prison 
by warrant of the Judge, as for a contempt. 

No person shall, on examination, pursuant to this Chapter, be excused 
from answering any question on the ground that his examination will tend 
to Gouvict him of the commission of a fraud; but his answer shall not be 
used as evidence against him in any criminal proceeding or prosecution. 
Nor shall he be excused from answering any question, on the ground that 
he has, before the examination, executed any conveyance, assignment, or 
transfer of his property for any purpose ; but his answer shall not be used 
as evidence against him in any criminal proceeding or prosecution. 

Every judgment creditor who can make the requisite showing is entitled to institute supple- 
mentary proceedings. Sparks r. Davis, 25 S. C. 381. And to have examination of debtor 
even after appointment of receiver. Jh.. 

The remedy eiven by this Section cannot be taken by way of defense to an action; it is a 
summarv reuiedv, based directly on the judgment and supplementary to the prior proceedings. 
Wylie V. Lyle, 7 S. C. 202. 

The judgment debtor has the right to have examination conducted in his own county. Bank 
r. Xorthrop, 19 S. C. 473. But he may waive this right by submitting his own written 
statement. Ih. , , j, 

It is no ground for dismissing the proceeding that the copy order to appear before referee, 
served on the defendant, was without seal of Court to Clerk's certificate. Billing v. Foster, 21 
S. C. 384. . . ^. J 

Upon proper proceeding hereunder the Court may order money of defendant, m its hands, 
to be applied to execution against him returned unsatisfied. McDaniel v. Stokes, 19 S. C. 60. 

Although application for appointment of a receiver was made under subdivision 1, the 
appointment might be made under subdivision 2, if the facts justified it, although no execu- 
tion had issued. Green v. Bookart, 19 S. C. 466. 

When defendant debtor, residing in another county, appears in the Court of another county, 
where the judgment was rendered, and without objection, was examined, and a receiver was 
appointed, he waives his right to examination in his own county and to object to appoint- 
ment of receiver. Ih. 

Under this Section, a judgment creditor may arrest funds in hand of third party alleged 
to belong to the judgment debtor and hold until the ownership shall be decided. Lumber Co. v. 
Chem. Co., Ill S. C. 299: 97 S. E. 838. 

tinder this Section, a judgment creditor may have the examination after a nullcu oona 
return as a matter of right and without affidavit. Robinson v. McMaster, 109 S. C. 20; 95 
S. E. 110. 

Ant Debtor to Execution Debtor Mat Pat His Debt to Sheriff.— 
After the issuing of execution against property, any person indebted to the 
judgment debtor may pay to the Sheriff the amount of his debt, or so much 
thereof as shall be necessary to satisfy the execution; and the Sheriff's re- 
ceipt shall be a sufficient discharge for the amount so paid. 

Civ. Pro., '12, § 351; Civ. Pro., '02, § 312; 1870, XIV, §§ 31S, 319. 

Such payment, with instructions to apply to a junior execution against creditor which 
had lost its active energ%% was a valid pavment and discharged the debtor therefor. Isbell 
r. Dunlap, 17 S. C. 581." ^ ^ ^ 

This applies onlv to claims which have not been reduced to judgment. Gray v. Futnam. 
51 S. C. 97, 28 S. E. 149. 

(614) § 2. Examination of Debtors of Judgment Debtor, or of Per- 
sons Having" Property Belonging to Him. — After the issuing or return of 
an execution against property of the judgment debtor, or of any one of 
several debtors in the same judgment, and upon an affidavit that any per- 
son or corporation has property of such judgment debtor, or is indebted 
to him in an amount exceeding ten dollars, the Judge may, by an order, 
require such person or corporation, or any officer or member thereof, to 
appear at a specified time and place, and answer concerning the same. 
The Judge may also, in his discretion, require notice of such proceeding 
to be given to any party to the action, in such manner as may seem to 
him proper. 

IT C C P 



242 CODE OF CIVIL PROCEDURE 

The proceedings mentioned in this Section, and in Section 613, may be 
taken upon the return of an execution unsatisfied issued upon a judgment 
recovered in an action against joint debtors, in which some of the defend- 
ants have not been served with the summons by which said action was com- 
menced, so far as relates to the joint property of such debtors; and all 
actions by creditors to obtain satisfaction of judgments out of the prop- 
erty of joint debtors are maintainable in the like manner and to the like 
effect. These provisions shall apply to all proceedings and actions now 
pending, and not actually terminated by any final judgment or decree. 

Civ. Pro., '12, § 352 ; Civ. Pro., '02, § 314 ; 1870, XIV, § 320. 

See case Lbr. Co. v. Chem. Co., Ill S. C. 299; 97 S. E. 833, note under Section 613. 

(615) § 3. Witnesses Required to Testify. — Witnesses may be re- 
quired to appear and testify on any proceedings under this Chapter, in 
the same manner as upon the trial of an issue. 

Civ. Pro., '12, § 353 ; Civ. Pro., '02, § 315 ; 1870, XIV, § 321. 

See case Lbr. Co. v. Chem. Co., Ill S. C. 299; 97 S. E. 833, note under Section 613. 

(616) § 4. Compellingf Party or Witnesses to Attend. — The party or 
witness may be required to attend before the Judge, or before a referee 
appointed by the Court or Judge. If before a referee, the examination 
shall be taken by the referee, and certified to the Judge. All examinations 
and answers before a Judge or referee, under this Chapter, shall be on oath, 
except that when a corporation answers, the answer shall be on the oath 
of an officer thereof. 

Civ. Pro., '12, § 354; Civ. Pro., '02, § 316; 1870, XIV, § 322. 

Where the same referee is appointed in separate cases of supplementary proceedings by 
two creditors against the same defendant, the two cases may be heard together. Kennesaw 
Mills Co. V. Walker, 19 S. C. 104. 

A referee, no matter how limited his power, must sometimes necessarily decide questions in 
making the examination. lb. 

A Circuit .Judge may pass the final order in such proceedings at his chambers in a county 
other than that in which the defendant resides, the examination having been held in his 
County. Th. 

See case Lbr. Co. v. Chem. Co., Ill S. C. 299; 97 S. E. 833, note under Section 613. 

(617) § 5. What Property May Be Ordered to Be Applied to Execu- 
tion. — The Judge may order any property of the judgment debtor, not 
exempt from execution, in the hands either of himself or any other person, 
or due to the judgment debtor, to be applied towards the satisfaction of 
the judgment; except that the earnings of the debtor for his personal ser- 
vices, at any time within sixty days next preceding the order, cannot be so 
applied, when it is made to appear by the debtor's afiidavit or otherwise, 
that such earnings are necessary for the use of a family supported wholly 
or partly by his labor. 

Civ. Pro., '12, § 355; Civ. Pro., '02, § 317; 1870, XIV, § 323. 

After return of execution unsatisfied, the Court may, upon hearing, order defendant's prop- 
erty in its hands to be so applied. McDaniel v. Stokes, 19 S. C. 60 ; Bank v. Northrop, 19 
S. C. 473. Or money due the defendant to be so applied. Rhodes v. Casey, 20 S. C. 491. 

But cannot require debtor's sureties to give up property pledged to them as indemnity. 
Cheatham v. Seawright, 30 S. C. 101, 8 S. E. 526. Nor require innocent assignee of a judg- 
ment, who bought after order, to show cause and enjoining assignment had been passed but 
not served. Robertson v. Segler, 24 S. C. 387. 

The Judge may enforce his order for such application of property by attachment for con- 
tempt. Kennesaw Co. v. Walker, 19 S. C. 104. 

But such attachments should not issue until party had had an opportunity to answer. lb. 

A fee earned in litigation ended more than sixty days before such order was made against 
the defendant, was not an earning of the debtor so exempt. Bank v. Northrop, 19 S. C. 473. 

Where there are several judgment plaintiffs the property should go to those alone who move 
hereunder. Rhodes v. Casey, 20 S. C. 491. 

See case Lbr. Co. i: Chem. Co., Ill S. C. 299; 97 S. E. 833, note under Section 613. 



OF SOUTH CAROLINA 243 

(618) § 6. Judge May Appoint Receiver and Prohibit Transfer of 
Property. — The Judge may also, by order, appoint a receiver of the prop- 
erty of the judgment debtor, in the same manner, and with the like au- 
thority, as if appointment was made by the Court, according to Section 
(524). But before the appointment of such receiver, the Judge shall ascer- 
tain, if practicable, by the oath of the party or otherwise, whether any 
other supplementarj'- proceedings are pending against the judgment debtor, 
and if such proceedings are so pending, the plaintiff therein shall have 
notice to appear before him, and shall likewise have notice of all subse- 
quent proceedings in relation to said receivership. No more than one re- 
ceiver of the property of a judgment debtor shall be appointed. The Judge 
may also, by order, forbid a transfer or other disposition of the property 
of the judgment debtor not exempt from execution, and any interference 
therewith. 

"Whenever the Judge shall grant an order for the appointment of a re- 
ceiver of the property of the judgment debtor, the same shall be filed in 
the office of the Clerk of the Court of Common Pleas of the county where 
the judgment roll in tlie action, or transcript from Magistrate's judgment, 
upon which the proceedings are taken, is filed; and the said Clerk shall 
record the order in a book, to be kept for that purpose in his office, to be 
called ''Book of Orders Appointing Eeceivers of Judgment Debtors," and 
shall note the time of the filing of said order therein. A certified copy of 
said order shall be delivered t